Andrew Quemere v. Northwestern District Attorney's Office (SPR 20202025)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 2, 2020 SPR20/2025 Cynthia Von Flatern, Esq. Assistant District Attorney Northwestern District Attorney’s Office One Gleason Plaza Northampton, MA 01060 Dear Attorney Von Flatern: I have received the petition of Andrew Quemere appealing the response of the Northwestern 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, Mr. Quemere requested: • “All letters, emails, and other documentation from law enforcement agencies and correctional institutions advising your office of Brady/Giglio information….. • All letters, emails, and other documentation sent by your office to criminal defendants or their counsel disclosing Brady/Giglio information” from 2009-2020. The Office responded on September 24, 2020, stating that it does not possess responsive records. Unsatisfied with the Office’s response, Mr. Quemere petitioned this office and this appeal, SPR20/2025, 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); 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 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

Cynthia Von Flatern, Esq. SPR20/2025 Page 2 November 2, 2020 must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. Current Appeal In its September 24, 2020 response, the Offices states that it “has no documents” responsive to the request, and reaffirmed this in an October 8, 2020 email to Mr. Quemere. In a phone call with a staff attorney of the Public Records Division on November 2, 2020, you confirmed that the Office does not possess responsive records. No Duty to Create a Record 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 of records at the time of the request. See G. L. c. 66, § 10(a)(ii). Accordingly, whereas the Office has informed Mr. Quemere that it does not possess responsive records, I will consider this administrative appeal closed. If Mr. Quemere is not satisfied with the result 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) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Rebecca S. Murray Supervisor of Records cc: Andrew Quemere