Andrew Quemere v. Bristol County Sheriff's Office (SPR 20221084)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 20, 2022 SPR22/1084 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 Appeals This request was the subject of previous appeals. See SPR22/0185 Supervisor of Records Determination (February 8, 2022); SPR22/0475 Supervisor of Records Determination (March 14, 2022). In my March 14th determination, I declined to opine on the status of certain records that are currently involved in pending criminal litigation. I also found that the Office had not met its burden to withhold other responsive records under Exemptions (a), (c), and (d) of the Public Records Law. Subsequently, the Office responded to Mr. Quemere on March 28, 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. SPR22/1084 Page 2 May 20, 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 Office’s March 28th Response In its March 28, 2022 response, and in a letter to this office and Mr. Quemere on May 20, 2022, the Office reiterates its claims under Exemptions (a), (c) and (d) for withholding the names of exonerated officers, the names of Brady officers, and responsive communications with police departments concerning whether information constitutes Brady material. In my March 14th determination, I declined to opine on the Office’s claims concerning the records of the officers currently involved in pending criminal litigation. As to the other responsive records, I found that G. L. c. 214, § 1B, operating through Exemption (a) of the Public Records Law, does not allow for the withholding of the requested records. See G. L. c. 4, § 7(26)(a); G. L. c. 214, § 1B. Additionally, I found that the Office has not met its burden to demonstrate how the responsive records are not “related to a law enforcement misconduct investigation” as required under Exemption (c). See G. L. c. 4, § 7(26)(c). Further, I found that the Office has not met its burden to show how a decision to make Brady disclosures constitutes development of a policy position under Exemption (d). See G. L. c. 4, § 7(26)(d). In its March 28th response, with regard to the names of exonerated officers, the Office states that it “disagrees with the decision of the Supervisor, for the reasons stated in [the] office’s previous letters and notes that these theories of withholding are still open questions in the courts.” As to the names of Brady officers, the Office states that it “continues to maintain, in good faith, that the privacy right protects the names of the officers from disclosure but not the description of the conduct.” Finally, in regard to the communications with police departments, the Office states that “as previously noted in [the] office’s prior letters, [the] office believes that

Mary Lee, Esq. SPR22/1084 Page 3 May 20, 2022 it has complied with the law by providing communications in closed cases” and the Office “respectfully declines to provide any communications made prior to a determination that information constitutes Brady information.” The Office’s March 28th response and May 20th letter, while thoroughly restating the Office’s position on these matters, contain no new arguments nor additional information that would affect the application of Exemptions (a), (c), and (d) to the responsive records. Order Accordingly, the Office is again ordered to provide Mr. Quemere with a response in a manner consistent with this and prior orders, the Public Records Law, and its Regulations without delay. 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. Please be advised that failure to comply with this order may result in referral of this matter to the Office of the Attorney General. See G. L. c. 66, § 10A(b). Sincerely, Rebecca S. Murray Supervisor of Records cc: Andrew Quemere