Andrew Quemere v. Methuen, City of - Police Department (SPR 20201842)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 14, 2020 SPR20/1842 Captain Gregory Gallant Field Operations Bureau Commander Methuen Police Department 90 Hampshire Street Methuen, MA 01844 Dear Captain Gallant: I have received the petition of Andrew Quemere appealing the response of the Methuen 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 that “… the following records be provided in electronic format: [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 2009 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 2009 to the present (if the records contain data for additional years, please do not remove the extra data) [5.] All data on the total number of use-of-force incidents involving each department employee.” Unsatisfied with the Department’s response, Mr. Quemere petitioned this office and this appeal, SPR20/1842, 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). 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

Captain Gregory Gallant SPR20/1842 Page 2 October 14, 2020 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. The Department’s September 14th response In its September 14th response, the Department provided the following responses: “[1.] These are currently available on the city of Methuen website, as previously disseminated in public records requests. [2.] These are attached to the aforementioned use of force policy. [3.] There are no records that meet this criteria [4.] There are no records that meet this criteria [5.] There is no record that meets this criteria.” Current appeal In his appeal, Mr. Quemere stated, “[t]he department clarified that it has not had any lethal force or firearm discharge reports in recent years, but it has not clarified whether it has been preparing reports or collecting data about the ‘Subject Non-Compliance reports’ specified in the policy.” Based upon a conversation between a Public Records Division staff attorney and a Department representative, the Department confirmed that no responsive Subject Non-Compliance reports. Under the Public Records Law, the Department is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d). 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. Whereas the Department has confirmed that all responsive records have been provided, I will now consider this administrative appeal closed. If Mr. Quemere is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 10(b) (pursuit of administrative appeal does not limit availability of applicable judicial remedies).

Captain Gregory Gallant SPR20/1842 Page 3 October 14, 2020 Sincerely, Rebecca S. Murray Supervisor of Records cc: Andrew Quemere