Andrew Quemere v. Cape & Islands District Attorney's Office (SPR 20221111)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 25, 2022 SPR22/1111 Tara L. Miltimore, Esq. Assistant District Attorney Records Access Officer Cape & Islands District Attorney’s Office 3231 Main Street Barnstable, MA 02630 Dear Attorney Miltimore: I have received the petition of Andrew Quemere appealing the response of the Cape & Islands 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 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, 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 SPR22/0285 Determination of the Supervisor of Records (February 17, 2022). The Office responded on March 22, 2022 and May 2, 2022. Unsatisfied with the Office’s responses, Mr. Quemere petitioned this office and this appeal, SPR22/1111, 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 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

Tara L. Miltimore, Esq. SPR22/1111 Page 2 May 25, 2022 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. The Office’s Response In its March 22nd response, the Office stated, “[the Office] do[es] not have a list I can generate or search. I previously attached a sample of a letter we send to police departments requesting any possible exculpatory material relating to potential police witnesses. The media recently requested information on a recent Tisbury Police case and I was able to locate the attached letter which is yet another example of how our office handles Brady-type cases. Other than that our office does not have any records responsive to your request.” In its May 2nd response, the Office asserted, “[the Office] do[es] not keep a list of what we have disclosed. We would have to manually search every case we have to comply with this request.” Current appeal In his appeal, Mr. Quemere asserts, “[t]he office has not identified any of the responsive records it possesses, explained why it would need to ‘manually search every case we have to comply,’ whether any of the records could be searched for using other methods, nor has it suggested a way of modifying or narrowing the request to make it more feasible to comply with. Documents are generally created in word processors and other computer programs, therefore it is unclear why the office cannot search for many of these records through an electronic search.” I encourage the parties to communicate and work together to satisfy Mr. Quemere’s request. The Office may suggest a reasonable modification of the scope of the request or offer to assist Mr. Quemere to further modify the scope of the request if doing so would enable the Office to produce records sought more efficiently and affordably. Based upon a review of the file and the appeal, the Office’s responses 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).

Tara L. Miltimore, Esq. SPR22/1111 Page 3 May 25, 2022 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