Andrew Quemere v. Plymouth County Sheriff's Office (SPR 20201903)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 20, 2020 SPR20/1903 Patrick C. Lee General Counsel Plymouth County Sheriff’s Department 24 Long Pond Road Plymouth, MA 02360 Dear Attorney Lee: I have received the petition of Andrew Quemere appealing the response of the Plymouth County Sheriff’s 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 3, 2020, Mr. Quemere requested: • “The sheriff's department's current use-of-force policies • 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) • 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) • 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, it is not necessary to remove the extra data) • All data on the total number of use-of-force incidents involving each department employee.” The Department initially responded on September 18, 2020. Mr. Quemere clarified his request on September 21, 2020. On October 2, 2020, the Department provided a response, producing responsive records redacted pursuant to CORI under Exemption (a), as well as redactions under Exemptions (b) and (n). Unsatisfied with the Department’s response, Mr. Quemere petitioned this office and this appeal, SPR20/1903, was opened as a result. 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

Patrick C. Lee, Esq. SPR20/1903 Page 2 October 20, 2020 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). The Department’s October 2nd Response In its October 2nd response, the Department indicates it is charging a fee for “data on the total number of use of force incidents involving each Department employee.” The Department also indicates in the produced documents information has been redacted pursuant to CORI under Exemption (a), as well as Exemption (b) and (n). The Department states it “has redacted security procedures from Policy 505, which are exempt from disclosure. The request seeks information related solely to internal personnel rules and practices of the government unit, and proper performance of necessary government functions requires withholding of this information. G.L. c. 4 §7 cl. Twentysixth (b)… [y]our request seeks information which would reveal the internal working procedures and practices of a law enforcement agency, including detailed description of responding to violent behavior inside and outside a prison setting. Disclosure of such information would undermine the agency’s security procedures and jeopardize the safety and security of the Facility. Dissemination of the information greatly increases the risk that criminals could counter such law enforcement methods, subjecting inmates, employees, and the public to increased risk of assault.” The Department further states “[t]he request seeks policies and security measures relating to the security or safety of persons or buildings, structures, facilities, or cyber security, exempt from disclosure under G.L. c. 4 §7 Twenty-sixth (n). Responsive documents include detailed information about the practices the Department uses to maintain a safe and secure correctional facility. Public dissemination of such information increases the risk that prisoners could subvert such practices and subject the staff, inmates, and the public to increased risk of harm.”

Patrick C. Lee, Esq. SPR20/1903 Page 3 October 20, 2020 Lastly, the Department indicates “[t]he Department has redacted the names and identification numbers of inmates. Such information is criminal offender record information (CORI) exempt from disclosure by statute. G.L c. 4 §7 cl. Twenty-sixth (a) and c. 6 § 172. All requested records consist of records and data compiled by a criminal justice agency which concern identifiable individuals, and relate to their incarceration, which records constitute ‘criminal offender record information,’ under the definition provided in G.L. c. 6 §167. The Department is limited under G.L. c. 6 §172 in its ability to disseminate such CORI records, under penalty of fines and imprisonment.” G. L. c. 66, § 10(e) In his appeal petition, Mr. Quemere asserts that “the Plymouth County Sheriff’s Department provided some records but stated that to provide additional responsive data, it would need to spend 46 2/3 hours of employee time and charge a fee of $1116.50. However, the department did not provide its response within 10 business days and therefore it cannot charge a fee for these records.” 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 September 3, 2020, and the Department provided a fee estimate on October 2, 2020, 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 following receipt of the request. Reasonableness of fee estimate In the event that the Department can demonstrate that it complied with G. L. c. 66, § 10(e), it is necessary to analyze the reasonableness of the fee estimate. In its October 2nd response, the Department indicates “[f]or reports from 2017 to present, the Department estimates that a system programmer would have to spend two hours to search the offender management system and compile the data for each employee, at the expense to the Commonwealth of $102.86 ($51.43 x 2). To gather the data you seek from before 2017, security and operations assistant would have to review individual use of force reports from 2010 to 2016, approximately 80 reports per year. Spending the bare minimum of five minutes per report, the task would take 46 2/3 hours, at an expense to the Commonwealth of $1598.57 ($34.26 x 46.66). If you would like the Department to proceed with searching for this data, please send a check payable to the Plymouth County Sheriff’s Department in the amount of $1116.50 ($25 x 44.66).” However, it is unclear why the Department requires the amount of time indicated to complete these tasks. Specifically, it is unclear why five minutes is necessary to review each report. The Department must clarify this matter.

Patrick C. Lee, Esq. SPR20/1903 Page 4 October 20, 2020 Further, the Department indicates that it is assessing a fee over $25 an hour to produce the responsive records. The Department is reminded that under the Public Records Law, a fee may not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv). See G. L. c. 66, § 10(d)(ii); 950 C.M.R. 32.06(4). I am not aware that the Department has submitted a petition under G. L. c. 66, § 10(d)(iv). Please note that petitions seeking permission to assess fees must be made within ten business days after receipt of a request for public records. See 950 C.M.R. 32.06(4)(g). Searchable Text In his appeal petition, Mr. Quemere states “provided the policy as a scan, which removed the searchable, machine-readable text from it.” Please be advised that pursuant to the Public Records Law, “[t]he 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.” See G. L. c. 66, § 6A(d). Conclusion Accordingly, the Department is ordered to provide a response to Mr. Quemere, provided 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