Andrew Quemere v. Bristol County District Attorney's Office (SPR 20220475)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 14, 2022 SPR22/0475 Mary Lee, Esq. Assistant District Attorney Bristol District Attorney’s Office 888 Purchase Street New Bedford, MA 02740 Dear Attorney Lee: I have received the petition of Andrew Quemere appealing the response of the Bristol 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 the following: [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, 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 [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. Previous Appeal This request was the subject of a previous appeal. See SPR22/0185 Supervisor of Records Determination (February 8, 2022). In my February 8th determination, I ordered the Office to clarify its claims under Exemptions (a), (c), and (f) of the Public Records Law. Subsequently, the Office responded on February 23, 2022. Unsatisfied with the Office’s response, Mr. Quemere appealed, and this case 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

Mary Lee, Esq. SPR22/0475 Page 2 March 14, 2022 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). 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. Att’y 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. 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. Fee Estimates - Agencies 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). G. L. c. 66, § 10(e) G. L. c. 66, § 10(e) provides that “[a] records access officer shall not charge a fee for a public record unless the records access officer responded to the requestor within 10 business days under subsection (b).” In this case, Mr. Quemere submitted his request after business hours on January 10, 2022, and the Office initially responded on January 26, 2022, within 10 business

Mary Lee, Esq. SPR22/0475 Page 3 March 14, 2022 days, by providing some records and a written response explaining why the Office was withholding others. Following my February 8, 2022 determination, the Office again responded to Mr. Quemere within 10 business days, providing a fee estimate under G. L. c. 66, § 10(b). Accordingly, I find the Office may assess a fee to produce responsive records. The Office’s February 23rd Fee Estimate In its February 23, 2022 response, the Office provides the following information concerning its fee estimate: Records that have been withheld, that would be responsive to [Mr. Quemere’s] request but for the CORI exemption (communications with defendants and their attorneys), are not located in one place. Rather they require a search through individual case files and then once gathered would require redaction after review. [The Office] anticipate[s] that this process will require approximately twenty hours, given that the records provided to [Mr. Quemere] reference eleven separate officers. The statute permits a fee of $25 per hour and there is no person who can conduct this work who is paid less than that amount. In a letter to this office and Mr. Quemere on March 10, 2022, the Office provides the following additional information: The estimate of time is actually quite low, in that it permits less than two hours per officer to locate Brady disclosures (which are not located in one place but are instead kept in individual case files), review each set of records, and redact where necessary to protect private individual information, e.g. witness identification, personal identifying information, and CORI. Each record will also have to be reviewed to determine whether any protective order or order of impoundment, or some other reason, prohibits its public dissemination. Based on the Office’s response, it is unclear why it requires twenty hours to search for, redact, and compile the responsive records. The Office must provide further details regarding the tasks involved and what each task entails, including the time it is allocating to compiling, segregating, redacting and reproducing the requested records. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). This office encourages Mr. Quemere and the Office to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii) (an agency 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 to produce the records sought more efficiently and affordably). The Office’s February 23rd Response In its February 23, 2022 response, the Office cites Exemptions (a), (c), (f), and (d) for redacting and withholding responsive records, and indicates that some responsive records are the

Mary Lee, Esq. SPR22/0475 Page 4 March 14, 2022 subject of pending criminal prosecutions. Pending Litigation 950 C.M.R. 32.08(2)(b) provides in pertinent part: the Supervisor may deny an appeal for, among other reasons if, in the opinion of the Supervisor: 1. the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation. In its February 23, 2022 response, the Office indicates that criminal prosecutions are currently pending in Fall River Superior Court for Michael Pessoa, and in Fall River District Court for “the other former officer with pending criminal prosecutions.” In light of the pending criminal matters, I decline to opine on the Office’s claims, based on Exemption (f) and an impoundment order, concerning records involved in these pending criminal matters at this time. See 950 C.M.R. 32.08(2)(b). It should be noted that a change in the status of these criminal prosecutions could impact the applicability of 950 C.M.R. 32.08(2)(b). Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7(26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public’s right to inspect records under the Public Records Law is restricted. See Att’y Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either “shall not be a public record,” “shall be kept confidential” or “shall not be subject to the disclosure provision of the Public Records Law.” The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities.

Mary Lee, Esq. SPR22/0475 Page 5 March 14, 2022 G. L. c. 214, § 1B, The Privacy Statute In its February 23, 2022 and March 100, 2022 responses, the Office cites G. L. c. 214, § 1B, known as the Privacy Statute, which provides: A person shall have a right against unreasonable, substantial or serious interference with his privacy. The superior court shall have jurisdiction in equity to enforce such right and in connection therewith to award damages. G. L. c. 214, § 1B. This statute does not specifically, nor by implication, exempt any particular records from disclosure; therefore, this statute does not operate under Exemption (a) for the withholding of records or information responsive to this request. See Cape Cod Times v. Sheriff of Barnstable Cty., 443 Mass. 587, 595 (2005) (explaining G. L. c. 214, § 1B provides no alternative legal basis to resist inspection of requested materials). Therefore, this statute does not allow for the withholding of the requested records. Exemption (c) Exemption (c) applies to: personnel and medical files or information and any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy; provided, however, that this subclause shall not apply to records related to a law enforcement misconduct investigation G. L. c. 4, § 7(26)(c). Analysis under Exemption (c) is subjective in nature and requires a balancing of the public’s right to know against the relevant privacy interests at stake. Torres v. Att’y Gen., 391 Mass. 1, 9 (1984); Att’y Gen. v. Assistant Comm’r of Real Property Dep’t., 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case by case basis. This exemption does not protect all data relating to specifically named individuals. Rather, there are factors to consider when assessing the weight of the privacy interest at stake: (1) whether disclosure would result in personal embarrassment to an individual of normal sensibilities; (2) whether the materials sought contain intimate details of a highly personal nature; and (3) whether the same information is available from other sources. See People for the Ethical Treatment of Animals (PETA) v. Dep’t of Agric. Res., 477 Mass. 280, 292 (2017). When analyzing a privacy claim, there is a balancing test which provides that where the public interest in obtaining the requested information substantially outweighs the seriousness of any invasion of privacy, the private interest in preventing disclosure must yield. PETA, 477

Mary Lee, Esq. SPR22/0475 Page 6 March 14, 2022 Mass. at 291. The public has a recognized interest in knowing whether public servants are carrying out their duties in a law abiding and efficient manner. Id. at 292. The Office argues that it “respectfully disagrees with the finding that exonerations constitute records of misconduct” and further argues that “the names of exonerated officers were withheld from a record, labeled “8-24-2021 Fall River,” where several officers simply responded to a citizen’s request for help, and a different officer was found to have acted poorly. This office declines to provide the names of officers who were exonerated, as if their actions constituted misconduct.” Additionally, under Exemption (c), the Office argues that it is “respectfully declining to name individual officers who are the subject of the Brady records, with the exception of [the two] whose names were already made public.” Further, the Office contends that it “is complying with the newly amended language in subclause 26(c) that has not yet been interpreted by the courts in this regard, while at the same time protecting individual privacy rights under G.L. c. 214, § 1B.” Based on the Office’s response, I find that the Office has not met its burden to demonstrate how the responsive records are not “related to a law enforcement misconduct investigation.” G. L. c. 4, § 7(26)(c). Please note that the amended language of Exemption (c) does not distinguish whether responsive records “constitute records of misconduct,” as argued by the Office. Exemption (d) Exemption (d) allows the withholding of: inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this subclause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based G. L. c. 4, § 7(26)(d). Exemption (d) is intended to avoid premature release of materials that could taint the deliberative process if disclosed. Its application is limited to recommendations on legal and policy matters found within an ongoing deliberative process. See Babets v. Sec’y of the Exec. Office of Human Servs., 403 Mass. 230, 237 n.8 (1988). Factual reports which are reasonably complete and inferences which can be drawn from factual investigations, even if labeled as opinions or conclusions, are not exempt as deliberative or policy making materials. G. L. c. 4, § 7(26)(d); see also Envtl. Protection Agency v. Mink, 410 U.S. 73, 89 (1973) (purely factual --------------------------- matters used in the development of government policy are subject to disclosure). Under Exemption (d), the Office reiterates its argument that “inter-office communications are not subject to the Public Records Law,” and further argues that it “has no

Mary Lee, Esq. SPR22/0475 Page 7 March 14, 2022 duty to disclose matters that are being considered but have not yet reached any conclusion.” In this case, the Office has not met its burden to show how the decision to make Brady disclosures constitutes a policy position. Further, the Office is advised that the Exemptions to the Public Records Law are not blanket in nature. The Office must explain whether segregable portions of the records can be provided. See G. L. c. 66, § 10(a); Reinstein, 378 Mass. at 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Conclusion Accordingly, the Office is ordered to provide Mr. Quemere with a response to his request, 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 the response to this office at pre@sec.state.ma.us. Sincerely, '' . I . . - ~ - . Rebecca S. Murray Supervisor of Records cc: Andrew Quemere