Andrew Quemere v. Lowell, City of - City Solicitor (SPR 20221112)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 17, 2022 SPR22/1112 John Pyers Executive Secretary City of Lowell 375 Merrimack St. #3 Lowell, MA 01854 Dear Mr. Pyers: I have received the petition of Andrew Quemere appealing the response of the City of Lowell (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 21, 2022, Mr. Quemere requested, “[a]ll police department internal affairs data submitted to the Peace Officer Standards and Training Commission; please provide the data as a spreadsheet, preferably in Excel formal…” The Department provided a response on April 26, 2022. Unsatisfied with the Department’s response, Mr. Quemere petitioned this office and this appeal, SPR22/1112, 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 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 town 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. Attorney 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. 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

John Pyers SPR22/1112 Page 2 May 17, 2022 The City’s April 26th Response In its April 26, 2022 response, the City stated, “attached is the document you requested regarding the data submitted to POST.” That same day, Mr. Quemere asserted, “as stated in my request, please provide this data in the form of a spreadsheet, preferably in Excel formal.” In response, the City replied, “the data was provided in that format from our Internal Affairs Department. If it is not entered and kept in an Excel spreadsheet, it doesn’t have to be created in Excel to meet a records request.” That same day, Mr. Quemere stated: You are mistaken. “A records access officer shall…to the extent feasible, provide public records to a requester…in the requester’s preferred format…” It’s clear from the document that you provided that this is not the original. There are columns (starting on page 29) that should line up with the columns on page one but are instead separated, making it difficult to interpret the information. If you provide the data in its original format or as an Excel spreadsheet, the columns should line up correctly. On May 6, 2022, the City stated, “the document format that you received is what the POST Commission dictated. This form was not created by our agency. If you have a problem with the format of this document, I suggest you contact the POST Commission…” Preferred Format A records access officer must, to the extent feasible, provide public records to a requestor in electronic format unless the record is not available in electronic form or the requestor does not have the ability to receive or access the records in electronic format and if feasible, in the requestor’s preferred format. In the absence of a preferred format, the records must be provided in a searchable machine-readable form. See 950 C.M.R. 32.04(5)(d). -- In light of Mr. Quemere’s appeal, I find that the City must clarify whether the responsive report can be provided in the requested format. I encourage the parties to work together to resolve the outstanding issues. Conclusion Accordingly, the City is ordered to provide Mr. Quemere with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations

John Pyers SPR22/1112 Page 3 May 17, 2022 within 10 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