Andrew Quemere v. Worcester County District Attorney's Office (SPR 20220190)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 10, 2022 SPR22/0190 Mark Relation, Esq. Records Access Officer Office of the Worcester District Attorney 225 Main St. G301 Worcester, MA 01608 Dear Attorney Relation: I have received a petition from Andrew Quemere appealing the response of the Office of the Worcester District Attorney (Office) to requests for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 10, 2022, Mr. Quemere requested the following records: [1] 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 [2] All Brady information … concerning individual law enforcement officers that might need to be, or have been, disclosed to defendants in criminal cases [3] All communications with criminal defendants and/or defense counsel advising them of the existence of Brady information or an officer's placement on a Brady list [4] All communications with police departments or individual officers regarding the existence or disclosure of Brady information or an officer's placement, or potential placement, on a Brady list The Office responded on January 27, 2022. Unsatisfied with the Office’s response, Mr. Quemere petitioned this office and this appeal, SPR22/0190, 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 agency or municipality of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). 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

Mark Relation, Esq. SPR22/0190 Page 2 February 10, 2022 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 27th response In its January 27th response, the Office provided the link to the Office’s website for Brady Lists. The Office indicated that it “… does not store Brady material in separate files. With regards to the first section of your request, for ‘the office's Brady list,’ we are unable to satisfy your request because there are no records that meet the parameters of the request.” With regard to the second request, the Office stated, “… the category of materials constitutes discovery provided to defense counsel under Mass. R. Crim. P. 14. Because protective orders may be applicable, dissemination of discovery materials ‘should follow normal procedures in criminal cases where its availability lies in the discretion of the trial judge under standards developed’ by the Supreme Judicial Court. Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). See G.L. c. 4, § 7(26)(a); G.L. c. 213, § 3.” The Office further explained that regarding the third and fourth request, “…there are no identifiable records that meet the parameters of the request, and because the request may call for discovery materials. The Worcester District Attorney's Office generally maintains files according to defendant name … The items you request do not comport with the recordkeeping system of the Worcester District Attorney's Office.” The Office’s January 27th response did not contain the specificity required in a denial of access to public records. The Office must identify what records it has in its possession, custody or control that are responsive to Mr. Quemere’s request. As a result, I find that the Office did not satisfy its burden in responding to this records request. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). I encourage Mr. Quemere and the Office to communicate in order to facilitate producing records efficiently and affordably. Mr. Quemere may wish to include applicable time periods or factors to enable the search to be more efficiently processed. G. L. c. 66, § l0(a)(i). The Office must use its knowledge of the records to facilitate providing any responsive records. G. L. c. 66, § l0(a)(vii) (an agency or municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency or municipality to produce records sought more efficiently and affordably). To the extent that the requested records exist, I find the Office must provide them in a manner consistent with the Public Records Law or identify an exemption that applies to withhold the records from disclosure. G. L. c. 66, § 10(b).

Mark Relation, Esq. SPR22/0190 Page 3 February 10, 2022 Order Accordingly, the Office is ordered to provide Mr. Quemere with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Andrew Quemere