Andrew Quemere v. Chicopee, City of - Police Department (SPR 20201699)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 29, 2020 SPR20/1699 Kevin Corridan, Esq. Chicopee Police Department 110 Church Street Chicopee, MA 01020 Dear Attorney Corridan: I have received the petition of Andrew Quemere appealing the response of the Chicopee Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on August 25, 2020, Mr. Quemere requested the following categories of requests: • “All policies, procedures, guidelines, and training records related to the police department's internal affairs investigations • All division-wide and department-wide reports/audits of the police department's internal affairs investigations for the years 2010 to the present… • All annual data on the number of complaints and internal affairs investigations for the years 2010 to the present (if the records containing the data contain data for additional years, it is not necessary to remove the extra information) • All data on the total number of complaints against each department employee.” Previous appeal The requested records were the subject of a previous appeal. See SPR20/1677 Determination of the Supervisor of Records (September 18, 2020). In my September 18th determination, I found the Department provided Mr. Quemere with a response dated September 15, 2020, which included a fee estimate. Unsatisfied with the Department’s response, Mr. Quemere petitioned this office and this appeal, SPR20/1699, was opened as a result. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all 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

Kevin Corridan, Esq. SPR20/1699 Page 2 September 29, 2020 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 Department’s September 15th fee estimate In its September 15th fee estimate, the Department indicates “[i]ncluding the 2 hour buffer, the current estimate to provide these documents is approximately $750 for police time and $200 for Law department review of these documents.” The Department also notes “[w]e have been searching for records that may be responsive to this request. The Police Department has been working on this independently and because of the number of public records requests we currently have in to that Department and vacations, it took some time to respond to you.” G. L. c. 66, § 10(e) In his appeal petition Mr. Quemere states “[i]n response to my public records request, the Chicopee Police Department has assessed a fee of $950. However, the department did not respond to the request within 10 business days, so it is not entitled to assess a fee.” G. L. c. 66, § 10(e) provides that “[a] records access officer shall not charge a fee for a public record unless the records access officer responded to the requestor within 10 business days under subsection (b).” Where Mr. Quemere submitted a public records request on August 25, 2020, and the Department provided a response on September 15th, I find it is unclear whether the Department complied with G. L. c. 66, § 10(e). Specifically, the Department must demonstrate whether it provided a response to Mr. Quemere’s request under G. L. c. 66, § 10(b) within 10 business days of receipt of the request.

Kevin Corridan, Esq. SPR20/1699 Page 3 September 29, 2020 Reasonableness of fee estimate In the event that the Department can demonstrate that it complied with G. L. c. 66, § 10(e), it is necessary to analyze the reasonableness of the fee estimate. In a supplemental response provided by the Department on September 15, 2020, the Department indicates “[t]his is the breakdown for the fee: Deputy Chief Dakin 16 hours to research, pull, copy and redacted Internal Affairs reports. 2 hours are at no fee, 14 hours at $25.00 per hour. My own estimated time of 4hrs at a rate of $50/hr.” However, it is unclear why the Department requires the amount of time indicated to complete these tasks. The Department must provide additional information explaining why the estimated amount of time is required and what these tasks, including “research, pull, copy and redacted Internal Affairs reports,” entail. Also the Department’s estimate does not make clear how many hours are being allocated to each of these specified tasks. The Department must clarify this estimate. Further, the Department indicates that it is assessing a fee for redacting records. The Department is reminded that under the Public Records Law, a fee may not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv). See G. L. c. 66, § 10(d)(ii); 950 C.M.R. 32.06(4). In addition, municipalities may not charge more than $25 per hour unless such rate is approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv). I am not aware that the Department has submitted a petition under G. L. c. 66, § 10(d)(iv). Please note that petitions seeking permission to assess fees must be made within ten business days after receipt of a request for public records. See 950 C.M.R. 32.06(4)(g). As such, I find the Department must provide information about whether the responsive records contain information that is required by law to be segregated or redacted, as well as the applicable statutes, if any. Conclusion Accordingly, the Department is ordered to provide Mr. Quemere with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us.

Kevin Corridan, Esq. SPR20/1699 Page 4 September 29, 2020 Sincerely, Rebecca S. Murray Supervisor of Records cc: Andrew Quemere