Andrew Quemere v. Middlefield, Town of - Town Administrator (SPR 20220623)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 30, 2022 SPR22/0623 Duane Pease Town Administrator Town of Middlefield 188 Skyline Trail Middlefield, MA 01243 Dear Mr. Pease: I have received the petition of Andrew Quemere appealing the nonresponse of the Town of Middlefield (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 9, 2022, Mr. Quemere requested records pertaining to: 1) The police department’s current use-of-force policies 2) All annual use-of-force reports/audits and other department-wide use-of-force reports/audits (meaning those that examine use of force by the entire department, not those about a specific use-of-force incident) 3) All data on use-of-force incidents that are stored by the department’s use-of-force tracking software 4) All numerical/statistical reports that can be exported from the department’s use-of- force tracking software (e.g., reports showing the total number of incidents per year, the total number of incidents involving each officer, etc) 5) If the department does not use software to track use-of-force incidents, please provide any manually tabulated data about use-of-force incidents. Previous Appeal This request was the subject of a previous appeal. See SPR22/0348 Supervisor of Records Determination (February 25, 2022). In my February 25th determination, I ordered the Town to provide Mr. Quemere with a response to his request. Subsequently, the Town responded on February 26, 2022, providing responsive records. Unsatisfied with the Town’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

Duane Pease SPR22/0623 Page 2 March 30, 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. The Town’s February 26th Response In its February 26, 2022 response, the Town provided Mr. Quemere with a copy of its Use of Force policy. In his appeal petition, Mr. Quemere states that “the town provided a copy of its use-of- force policy. But it did not address the other categories of records specified in [his] request.” Additional Responsive Records Please be advised that, the duty to comply with requests 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). Additionally, in accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). Based on issues raised in Mr. Quemere’s appeal, it is unclear if the Town possesses additional records responsive to the other items in his request. Specifically, it is unclear if the Town possesses the types of reports and data Mr. Quemere requested. The Town must clarify this. Conclusion Accordingly, the Town 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

Duane Pease SPR22/0623 Page 3 March 30, 2022 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, Rebecca S. Murray Supervisor of Records cc: Andrew Quemere