Andrew Quemere v. Berkshire District Attorney's Office (SPR 20201928)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 21, 2020 SPR20/1928 Richard M. Mahoney, Esq. Deputy District Attorney Office of the Berkshire County District Attorney 7 North Street, PO Box 1969 Pittsfield, MA 01202 Dear Attorney Mahoney: I have received the petition of Mr. Andrew Quemere appealing the nonresponse of the Office of the Berkshire County District Attorney (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 records: ● “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.” Claiming to not yet have received a response, Mr. Quemere petitioned this office and this appeal 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 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

Richard M. Mahoney, Esq. SPR20/1928 Page 2 October 21, 2020 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 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. Order Despite being notified of the opening of this appeal, the Office has yet to provide a response with respect to Mr. Quemere’s request. Accordingly, the Office 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. Mr. Quemere may appeal the substantive nature of the Office’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Mr. Andrew Quemere