Andrew Quemere v. Northampton, City of - Police Department (SPR 20201762)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 5, 2020 SPR20/1762 Jane Lawnicki Records Supervisor Northampton Police Department 29 Center Street Northampton, MA 01060-3090 Dear Ms. Lawnicki: I have received the petition of Andrew Quemere appealing the response of the Northampton 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 20, 2020, Mr. Quemere requested “[a]ll lists, logs, and databases of lawsuits filed against the police department for the years 2010 to the present (if any responsive records contain information about additional years, it is not necessary to remove the extra information).” Previous appeal The requested records were the subject of a previous appeal. See SPR20/1450 Determination of the Supervisor of Records (September 3, 2020). In my September 3rd determination, I ordered the Department to provide Mr. Quemere with a revised fee estimate, provided in a manner consistent with the order, the Public Records Law and its Regulations. Subsequently, on September 10, 2020, the Department provided a response, including responsive records. Unsatisfied with the Department’s response, Mr. Quemere petitioned this office and this appeal, SPR20/1762, was opened as a result. 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 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

Jane Lawnicki SPR20/1762 Page 2 October 5, 2020 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 On September 10, 2020, the Department provided the responsive records. Following receipt of the records, Mr. Quemere inquired “[t]his list does not contain docket numbers, settlement amounts, and other information one might expect such a database to have. Are these the complete data?” On September 11, 2020, Mr. Quemere further inquired if the Department is “. . . able to provide me with the original spreadsheet this data was extracted from?” On September 21, 2020, the Department responded indicating that it does not possesses a spreadsheet, because the provided record “. . . is not this department’s document. The original is with the department’s insurance company, MIIA. What [the Department] ha[s] sent you is all [it] has for documentation on lawsuits against the Northampton Police Department.” In his appeal petition, Mr. Quemere states “[t]he city of Northampton will not export data I requested in my preferred format because ‘[t]he original [data set] is with the department’s insurance company.’ Even if the city’s records are held by a third party such as an insurance company, the city still has an obligation to produce the records. Please order the city to comply with the public records law.” 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). Agency relationship Please be advised that where a public entity contracts with a third party to fulfill its public duties, and the public entity exercises control over that third party, an agency relationship is created. See Fifty-one Hispanic Residents of Chelsea v. School Comm. of Chelsea, 421 Mass. 598, 607 (1996) (while subject to control of a public entity as a principal for purposes of performing public duties, private university is a public agent). Wherever a record custodian keeps original public records in a location other than the government building, he or she has a

Jane Lawnicki SPR20/1762 Page 3 October 5, 2020 duty to make the public records available in a location convenient to the general public for inspection and copying. Based on the Department’s response, it is uncertain whether an agency relationship exists between the Department and its insurance company and whether the Department would be entitled to request or obtain the records requested by Mr. Quemere from its insurance company. 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). I find the Department must provide additional information regarding this issue. 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