Andrew Quemere v. Northwestern District Attorney's Office (SPR 20201684)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 28, 2020 SPR20/1684 Cynthia V. Flatern, Esq. Assistant District Attorney/Records Access Officer Northwestern District Attorney’s Office One Gleason Plaza Northampton, MA 01060 Dear Attorney Flatern: I have received the petition of Andrew Quemere appealing the response of the Northwestern District Attorney’s Office (Office) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on August 14, 2020, Mr. Quemere requested the following categories of records: [1] Your office’s “Brady lists,” which refers to lists of police officers who have credibility problems and other concerns that must be disclosed to the defense if the officer is involved in a criminal prosecution[.] [2] All letters, emails, and other communications notifying police departments and/or individual police officers that an officer has been added to a Brady list for the years 2015 to the present[.] [3] All policies, procedures, and training records related to Brady lists[.] Previous appeal The requested records were the subject of a previous appeal. See SPR20/1480 Determination of the Supervisor of Records (September 10, 2020). In my September 10th determination, I found that the Office had not met its burden to withhold records pursuant to Exemptions (a) and (c) of the Public Records Law. G. L. c. 4, § 7(26)(a), (c). Accordingly, I ordered the Office to provide Mr. Quemere with a response to the request, provided in a manner consistent with the order, the Public Records Law and its Regulations. Subsequently, the Office provided a response on September 14, 2020. Unsatisfied with the Office’s response, Mr. Quemere petitioned this office and this appeal, SPR20/1480, was opened as a result. One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre • pre@sec.state.ma.us

Cynthia V. Flatern, Esq. SPR20/1684 Page 2 September 28, 2020 The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10A(d); 950 C.M.R. 32.03(4). “Public records” is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any town of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Office’s September 14th response In its September 14, 2020 response, the Office states that “. . . it has provided you with its Brady Disclosure Protocol, responsive to your request for policies and procedures. The District Attorney’s Office does not have any additional records responsive to your request.” In his appeal petition, Mr. Quemere states “[i]n SPR20/1480, you found that the Northwestern District Attorney’s Office had not shown with specificity that exemptions it cited applied to requested public records. The DA now claims, with no further explanation, that it does not possess any additional records. Please order the DA’s office to comply with my request.” In a telephone conversation, a representative from the Office confirmed that it does not possess additional records responsive to this request. The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). Conclusion Where the Office has confirmed that it does not possess additional records, and has no duty to create records responsive to the request, I will consider this administrative appeal closed.

Cynthia V. Flatern, Esq. SPR20/1684 Page 3 September 28, 2020 Sincerely, Rebecca S. Murray Supervisor of Records cc: Andrew Quemere