Andrew Quemere v. Cape & Islands District Attorney's Office (SPR 20202087)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 9, 2020 SPR20/2087 Tara L. Miltimore, Esq. Assistant District Attorney Cape and Islands District Attorney’s Office 3231 Main Street Barnstable, MA 02630 Dear Attorney Miltimore; I have received the petition of Andrew Quemere appealing the response of the Cape and Islands District Attorney’s Office (DAO) 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 lists, logs or data sets about misconduct by prosecutors and/or complaints against prosecutors; • All regular (e.g., quarterly, annual, etc.) audits/reviews of misconduct by prosecutors and/or complaints against prosecutors. (I am referring to audits/reviews of an entire department/division or the entire office, not reports about individual employees). The DAO provided Mr. Quemere with a response on September 23, 2020 indicating that the DAO does not have any records responsive to the request. The DAO states, “[t]he Board of Bar Overseers [Board] would be a more appropriate agency to contact.” Unsatisfied with the response, Mr. Quemere petitioned the Supervisor of Records (Supervisor), and this appeal was opened. In his October 27, 2020 petition, Mr. Quemere asserts, “I followed up by asking if the Board provides copies of any of the responsive records to the [DAO]. The [DAO] did not clarify this matter. Public Records include not just records created, but also records received, by an agency; therefore, the office must identify all responsive records, even if they originated with an outside agency.” 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 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

Tara L. Miltimore, Esq. SPR20/2087 Page 2 November 9, 2020 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). While the DAO indicated in its September 23rd response that it has no records responsive to Mr. Quemere’s request, it is unclear whether the DAO has any records in its possession that it may have received from the Board. The DAO is advised, in accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). In addition, 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). I find the DAO must clarify whether it possesses any records responsive to this request. Conclusion Accordingly, the DAO is ordered to provide Mr. Quemere with a response to the request, 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 subsequent response within 90 calendar days. 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Andrew Quemere