Andrew Quemere v. Bristol County District Attorney's Office (SPR 20202060)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 9, 2020 SPR20/2060 Mary E. Lee, Esq. Assistant District Attorney Office of the District Attorney – Bristol District 888 Purchase Street New Bedford, MA 02740 Dear Attorney Lee: I have received the petition of Andrew Quemere appealing the response of the Office of the District Attorney Bristol District (Office) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, by email on September 11, 2020, Mr. Quemere requested: • “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 October 9, 2020, indicating they had no responsive records for part of the request, and withholding other records under Exemptions (a) and (f). Unsatisfied with the Office’s response, Mr. Quemere petitioned this office, and SPR20/2060 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

Mary E. Lee, Esq. SPR20/2060 Page 2 November 9, 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) (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). Current Appeal In its October 9th response, the Office indicates for part one of his request “[t]his office has no responsive records.” The Office explains in regard to the second part of Mr. Quemere’s request that “…disclosure of such records is governed by In the Matter of a Grand Jury Investigation, 485 Mass. 641, 658 (2020). The records that you are requesting seeks the identification of criminal defendants. Records within criminal prosecutions are not public because they identify criminal defendants. Attorney General v. District Attorney for the Plymouth District, 484 Mass. 260, 267-274 (2020); G.L. c. 6, §§ 167, et seq. (CORI statute protecting criminal record information from disclosure). If any of those criminal cases are pending, records are not publicly available. G.L. c. 4, § 7, cl. 26(f); Mass. R. Prof. Cond. 3.8(f)(1)-(2); Commonwealth v. Wood, 469 Mass. 266, 291-292 (2014). To the extent that the criminal cases contain impoundment or protective orders, such orders constitute an additional basis to withhold the records from dissemination as public records. Commonwealth v. Chism, 476 Mass. 171, 185, n.9 (2017); In the Matter of a Grand Jury Investigation, 485 Mass. 641, 658 (2020). Additionally grand jury materials, if deemed responsive, are not subject to public dissemination. Mass. R. Crim. P. 5(d) (grand jury secrecy); G.L. c. 268, § 13D (penalties for unlawful distribution of grand jury transcripts).” In his appeal, Mr. Quemere contends “[t]he office provides several justifications for withholding the records but does not provide any specific reasons why they would apply to the withheld records.” Mr. Quemere indicates “[t]he DA's office claims that releasing these records will identify criminal defendants. However, it is not clear why the office cannot simply redact the names and other identifying information about criminal defendants. The DA's office also states that ‘[i]f any of those criminal cases are pending, records are not publicly available.’ However, the office gives no indication that any of the cases are pending. The office states that ‘[t]o the extent that the criminal cases contain impoundment or protective orders, such orders constitute an additional basis to withhold the records from dissemination as public records.’ However, the office gives no indication that any of the records are under impoundment orders. The office also states that ‘grand jury materials, if deemed responsive, are not subject to public dissemination.’ However, the office has given no indication that any of the records are grand jury materials.”

Mary E. Lee, Esq. SPR20/2060 Page 3 November 9, 2020 Burden of specificity in claiming exemptions 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 Office did not meet its burden of demonstrating how the responsive records, in their entirety, are exempt from disclosure. See Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). The Office must produce any non-exempt, segregable portions of public records. G. L. c. 66, § 10(a). Further, the Office must identify what type of record(s) it has in its possession that the Office is withholding and provide the specific reasons for such withholding under the claimed Exemptions. The Office must clarify these matters. Conclusion Accordingly, the Office 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