Andrew Quemere v. Beverly, City of - Police Department (SPR 20202106)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 10, 2020 SPR20/2106 Captain Richard Russo Beverly Police Department 191 Cabot Street Beverly, MA 01915 Dear Captain Russo: I have received the petition of Andrew Quemere appealing the response of the Beverly Police Department (Department) 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 technical/training documents for software (including Micro Systems Pro IV) used to track use-of-force incidents and internal affairs investigations.” The Department responded on October 28, 2020, indicating that it does not possess responsive records. Unsatisfied with the Department’s response, Mr. Quemere petitioned this office and this appeal, SPR20/2106, 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 must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. 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

Cpt. Richard Russo SPR20/2106 Page 2 November 10, 2020 Current Appeal In its October 28th response, the Department states that it “do[es] not currently possess any technical/training documents for our current CAD system Micro Systems Pro.” In response to a request from Mr. Quemere to check a particular folder, the Department indicated the folder “does not contain an end user manual” but “contains installation instructions, PRO-IV functionality, and server information.” The Department asserts that “Microsystems has deemed this information proprietary information protected by their licensing and copyright laws.” In an October 30, 2020 email, the Department states that “the Help Tab on the PROIV Computer Aided Dispatch System contains technical information for IT/Administrators about installation instructions, PRO-IV functionality, and server information.” The Department additionally explains that “it has a copyrights and trademarks disclaimer which states the following: ‘The contents of this document and all associated computer programs and documentation are copyright and may not be reproduced without the written permission of NorthgateArinso.’” 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 Department’s response did not contain the specificity required to withhold responsive records. Specifically, the Department’s responses did not identify the exemption upon which its withholding is based, nor explain how such an exemption applies to the records at issue. See G. L. c. 66, § 10(b)(iv). Accordingly, I find the Department has not met its burden in responding to this request. 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.

Cpt. Richard Russo SPR20/2106 Page 3 November 10, 2020 Sincerely, Rebecca S. Murray Supervisor of Records cc: Andrew Quemere