Andrew Quemere v. Plymouth County District Attorney's Office (SPR 20220186)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 31, 2022 SPR22/0186 Patrick Nevins, Esq. Records Access Officer Plymouth County District Attorney’s Office 166 Main Street Brockton, MA 02301 Dear Attorney Nevins: I have received the petition of Andrew Quemere appealing the response of the Plymouth County 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). On January 11, 2022, Mr. Quemere requested, “the office's Brady list, which refers to a list of law enforcement officers who have credibility issues or other concerns that might need to be disclosed to defendants in criminal cases.” The Office provided a response on January 11, 2022. Unsatisfied with the Office’s response, Mr. Quemere petitioned this office and this appeal, SPR22/0186, 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. The Office’s January 11th Response On January 11, 2022, the Office stated, “we are currently working with the newly 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

Patrick Nevins, Esq. SPR22/0186 Page 2 January 31, 2022 established POST Commission to determine what records are public records. We have requested from them a ruling as to what is public information.” Possession, Custody, or Control of Public Records It is unclear from the Office’s response if it possesses the requested records. The duty to comply with a request 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). The Office must clarify whether it possesses the requested records. If it does possess them, the Office is advised that it must not only cite an exemption for withholding the records, but must also state why the exemption applies to the withheld or redacted portion of the responsive records. G. L. c. 66, § 10(b)(iv). Conclusion Accordingly, the Office is ordered to provide Mr. Quemere with a response in accordance with the Public Records Law, its Access Regulations and this order within ten business days. 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 days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Andrew Quemere