Andrew Quemere v. Essex County District Attorney's Office (SPR 20201849)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 15, 2020 SPR20/1849 Kristen W. Jiang Assistant District Attorney Essex County District Attorney’s Office 10 Federal Street Salem, MA 01970 Dear Attorney Jiang: I have received the petition of Andrew Quemere appealing the response of the Essex County 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, on September 11, 2020, Mr. Quemere requested the following categories of requests: • “All letters, emails, and other documentation from law enforcement agencies and correctional institutions advising your office of Brady/Giglio information. "Brady/Giglio information" refers to information regarding credibility problems or other issues with a law enforcement/correctional officer that might need to be disclosed to a criminal defendant. You can limit your search to the years 2009 to 2020. • All letters, emails, and other documentation sent by your office to criminal defendants or their counsel disclosing Brady/Giglio information. You can limit your search to the years 2009 to 2020.” The Office responded on September 29, 2020, which indicated their intent to charge a fee. Unsatisfied with the Office’s response, Mr. Quemere petitioned this office, and SPR20/1849 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

Kristen W. Jiang, Esq. SPR20/1849 Page 2 October 15, 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. 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 Office’s September 29th response In its September 29th response, the Office states to Mr. Quemere “…prior to producing copies of the same to you, please confirm that you will be responsible for the cost of review and redactions.” The Office indicates “[t]his request is unduly burdensome and entirely cost- prohibitive, as it calls for a review of tens of thousands of individual case files.” G. L. c. 66, § 10(e) In his appeal petition Mr. Quemere states “[t]he DA's office did not provide an itemized, good-faith fee estimate nor did it explain what exemptions it is citing and how they specifically apply to the records. The office also did not provide its response within 10 business days.” 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 in order to assess a fee. 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

Kristen W. Jiang, Esq. SPR20/1849 Page 3 October 15, 2020 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