Andrew Quemere v. Plymouth County District Attorney's Office (SPR 20220351)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 22, 2022 SPR22/0351 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 10, 2022, Mr. Quemere requested: [1] The [O]ffice'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, meaning all records 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[, and;] [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 provided a response and fee estimate on January 26, 2022 and a follow-up response on February 11, 2022. Unsatisfied with the Office’s responses, Mr. Quemere petitioned this office and this appeal, SPR22/0351, was opened as a result. 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. SPR22/0351 Page 2 February 22, 2022 Fee Estimates If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records ----- custodian must provide the responsive records. An agency may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.05) per page may be assessed for a black and white single or double-sided photocopy of a public record. G. L. c. 66, § 10(d)(i). Agencies may not assess a fee for the first four (4) hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested. G. L. c. 66, § 10(d)(ii). Where appropriate, agencies may include as part of the fee an hourly rate equal to or less than the hourly rate attributed to the lowest paid employee who has the necessary skill required to search for, compile, segregate, redact or reproduce a record requested, but the fee shall not be more than $25 per hour. Id. A fee shall not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv). See G. L. c. 66, § 10(d)(ii); 950 C.M.R. 32.06(4). A fee shall not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor under a petition under G. L. c. 66, § 10(d)(iv). G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4). The Office’s January 26th and February 11th Responses On January 26, 2022, the Office stated: [Regarding Request #2, t]o obtain copies of notices of disclosures we would have to determine which cases each officer was involved in, pull the files and boxes, and search for any copies of a notice of disclosure…We would need to work with each individual police department to secure a list of every case an officer was involved in, search our internal case management system, and locate and review each trial folder or box for Brady notices…With an estimation of at least 350 cases and 30 minutes to search our internal case management system, pull the case from archives or the different trial courts, and review for notices of disclosure, the good faith estimate to complete the request for the notices of disclosure includes: Labor Time: 175 hours[;] Labor Charged: $17.44 per hour[;] Total Labor Hours Waived: 4.00[;] Estimated Total: $2,982.24 … [Regarding Request #3, p]lease see our answer to #2. We do not have a record

Patrick Nevins, Esq. SPR22/0351 Page 3 February 22, 2022 that includes all communication with criminal defendants and/or defense counsel advising them of the existence of Brady information. We would have to conduct a similar case-by-case analysis … In its February 11, 2022 response, the Office provided records responsive to Requests #1 and 4, but reiterated its fee estimate for Requests #2 and 3. Current Appeal In his February 13, 2022 appeal, Mr. Quemere stated: These fees appear to be duplicative. The [Office] cannot double the assessed fees by claiming that it must search the same materials twice; conducting one search of the materials should be sufficient … The [Office] also asserts that its fee is based in part on the possibility that some records are the subject of protective orders… Even if some of the records are the subject of protective orders, the [Office] cannot charge me any fees for its search of the orders because I have not requested those records. The [Office] is obligated to provide a complete written response that explains whether it is withholding requested records and its basis for doing so at no cost. If it must search for protective orders to explain why it is withholding a requested record, it can do so, but it cannot charge a fee … It is also unclear from the [Office's] response why it needs to conduct an extensive search of its case files for the requested records that I identified as "Brady information.”… The [Office] does not need to identify every case involving each officer to provide this material; it only needs to identify what material it possesses with respect to each officer and provide one copy of each relevant record. In light of the information above, I find it uncertain how the Office calculated its overall fee. For example, while the Office does clarify the tasks involved in producing the records, the Office does not itemize how long it will spend on each task and explain why each task requires the respective lengths of time needed to satisfy the request. The Office must clarify these points. Conclusion Accordingly, the Office 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

Patrick Nevins, Esq. SPR22/0351 Page 4 February 22, 2022 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