Andrew Quemere v. Cape & Islands District Attorney's Office (SPR 20201791)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 7, 2020 SPR20/1791 Tara Miltimore, Esq. Assistant District Attorney Cape & Islands District Attorney’s Office 3231 Main Street P.O. Box 455 Barnstable, MA 02630 Dear Attorney Miltimore: I have received the petition of Andrew Quemere appealing the response of the Cape & Islands 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, Mr. Quemere requested: • “All letters, emails, and other documentation from law enforcement agencies and correctional institutions advising your office of Brady/Giglio information….. • All letters, emails, and other documentation sent by your office to criminal defendants or their counsel disclosing Brady/Giglio information.” The Office responded on September 22, 2020, stating that it does not possess responsive records. Unsatisfied with the Office’s response, Mr. Quemere petitioned this office and this appeal, SPR20/1791, 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 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 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

Tara Miltimore, Esq. SPR20/1791 Page 2 October 7, 2020 must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. Current Appeal In its September 22nd response, the Office states that it “does not have any records responsive to your request.” In response to questions from Mr. Quemere, in a September 23rd email the Office explained that it “do[es] not have a ‘list’ so to speak,” and states that “[i]t would not be possible to search emails or files for possible instances of police misconduct. We handle this issue on a case by case basis.” No Duty to Create Records Please be advised, under the Public Records Law a custodian is not required to create a record in response to a public records request. See G. L. c. 66, §6A(d). In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See 32 Op. Atty Gen. 157, 165 (May 18, 1977). 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). Although the Office does not have a duty to create records, it is unclear from the Office’s responses whether it possesses any responsive records. Although the Office states that “it would not be possible” to search for the records, it is not clear why. The Office must clarify this matter. Conclusion Accordingly, the Office is ordered to provide a response to Mr. Quemere, in a manner consistent with this order, the Public Records Law and its Regulations within ten 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