Andrew Quemere v. Brookline, Town of - Police Department (SPR 20201871)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 15, 2020 SPR20/1871 Neil Harrington Traffic/Records Division Supervisor Brookline Police Department 350 Washington Street Brookline, MA 02445 Dear Mr. Harrington: I have received the petition of Andrew Quemere appealing the response of the City of Brookline Police Department (Department). Specifically, Mr. Quemere requested several categories of information related to Department use-of-force incidents. The Department responded on October 1, 2020, producing responsive records. Unsatisfied with the Department’s response, Mr. Quemere petitioned this office and this appeal, SPR20/1871, 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) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based…”); 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). 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

Neil Harrington SPR20/1871 Page 2 October 15, 2020 Current Appeal In his appeal petition, Mr. Quemere states that he has requested that the responsive information be provided in “the form of an Excel spreadsheet,” and states that “[t]he [D]epartment has not given any indication that it lacks the ability to provide the data in this format.” In an October 1, 2020 email, the Department states that it “maintains no Excel spreadsheets on the materials provided, and will not be creating any such spreadsheets.” The Department asserts that “[t]here is no obligation for a department to create a record for a requester to honor a request.” The Department additionally states that “[w]hile not in the Requesters preferred format, the Department has provided materials in a searchable, machine readable format.” Please be advised that the relevant statute and regulation provide: “The records access officer shall, to the extent feasible, provide the public record in the requestor’s preferred format or, in the absence of a preferred format, in a searchable, machine readable format.” G. L. c. 66, § 6A(d). “…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 requesters 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). Based on the Department’s response, I find is unclear whether the Department can feasibly provide the records in the requestor’s preferred Excel spreadsheet format. The Department must clarify this matter. 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 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.

Neil Harrington SPR20/1871 Page 3 October 15, 2020 Sincerely, Rebecca S. Murray Supervisor of Records cc: Andrew Quemere