Andrew Quemere v. Salem, City of - Police Department (SPR 20201741)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 1, 2020 SPR20/1741 Indhira German Salem Police Department 95 Margin Street Salem, MA 01970 Dear Ms. German: I have received the petition of Andrew Quemere appealing the response of the Salem 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 September 4, 2020, Mr. Quemere requested the following records: [1] The police department’s current use-of-force policies [2] A blank copy of each form used to report use-of-force incidents (if the form is part of a computer program and is not easily exportable, it is acceptable to provide screenshots) [3] All division-wide and department-wide use-of-force reports/audits for the years 2010 to the present (by division-wide and department-wide, I mean reports/audits that examine use of force by an entire division or the entire department, not reports/audits about a specific use-of-force incident) [4] All data on the number of use-of-force incidents for the years 2010 to the present [5] All data on the total number of use-of-force incidents involving each department employee[]. On September 17, 2020, the Department provided responsive records. Unsatisfied with the Department’s response, Mr. Quemere petitioned this office and this appeal, SPR20/1741, was opened as a result. While this appeal was pending, the Department provided a supplemental on September 22, 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 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

Indhira German SPR20/1741 Page 2 October 1, 2020 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. Current appeal In the Department’s September 17, 2020 response, it provided responsive records to Mr. Quemere regarding his request. In an email correspondence on September 17th Mr. Quemere inquired “. . . it appears you saved the data as unsearchable PDFs, which removed functionality from the data. I ask that you export the data in Excel format.” The Department responded, stating that Mr. Quemere’s original request only indicated that the records should be provided in an electronic format, which has been provided. In his appeal petition, Mr. Quemere states that the Department “. . . provided data in a format that strips it of functionality, specifically in unsearchable PDFs. When I asked the department to provide the data in an Excel spreadsheet to address this issue, it refused, claiming that it already provided the data in an ‘electronic format.’” In the Department’s September 22, 2020 supplemental response, it explains that “. . . one of the data sets which was created in our records management system that he is referring to is only accessible by printing it and then scanning it. The other data set was a print out on paper which I scanned into a pdf. Neither of these data sets were at any time in an excel format. To convert this data from a pdf to an excel format would require creating a new public record by hand-typing it into Excel. If we are ‘ordered to comply’, [the Department] intend[s] to submit a cost estimate as this would exceed the two hours minimum of workload per request. It is my opinion that Andrew Quemere’s records request has been fulfilled.” The Department is advised that under the Public Records Access Regulations, a records access officer (RAO) must “to the extent feasible, provide public records to a requester in electronic format unless the record is not available in electronic form or the requester does not have the ability to receive or access the records in electronic format and if feasible, in the requester’s preferred format. In the absence of a preferred format, the records shall be provided in a searchable machine-readable form.” 950 C.M.R. 32.04(5)(d).

Indhira German SPR20/1741 Page 3 October 1, 2020 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Andrew Quemere