Andrew Quemere v. Worcester County District Attorney's Office (SPR 20221220)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 8, 2022 SPR22/1220 Mark Relation, Esq. Records Access Officer Office of the Worcester District Attorney 225 Main St. G301 Worcester, MA 01608 Dear Attorney Relation: I have received a petition from Andrew Quemere appealing the response of the Office of the Worcester District Attorney (Office) to requests 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 … 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. Prior Appeal This request was the subject of a previous appeal. See SPR22/0190 Supervisor of Records Determination (February 10, 2022). The Office responded on March 7, 2022. Unsatisfied with the Office’s response, Mr. Quemere petitioned this office and this appeal, SPR22/1220, 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 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

Mark Relation, Esq. SPR22/1220 Page 2 June 8, 2022 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) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based…”); 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). The Office’s March 7th Response In its March 7th response, the Office asserted, “[r]evising your request to only those cases since 2002 is still overly broad and burdensome on our office. As previously stated, Brady material is not stored in separate files or any separate database, but rather is dispersed among all of the records within each file in such a way that it is not possible to identify which files may contain responsive documents without reviewing the contents of each one individually.” The Office further advised, “[s]ince 2002 there have been just short of 850,000 cases. Reviewing that many physical files as well as all associated digital records would be unduly burdensome.” The Office also opined, “[a]dditionally, your definition of Brady information calls for records relating to ‘law enforcement officers who have credibility issues or other concerns that might need to be disclosed to defendants in criminal cases.’ This is a broad and imprecise category of information which does not comport with the requirements of Brady v. Maryland. Please provide additional reasonable limitations on your request so that we may be able to comply.” Current appeal In his appeal, Mr. Quemere asserts, “I believe the office is capable of locating and providing all responsive records since its website states that it always ‘immediately’ provides this information to defendants and courts when necessary. To the extent that my request is unduly burdensome, the office must provide sufficient information to allow me to narrow my request. At minimum, the office must identify all records that it can find through an electronic search and identify the categories of records that must be manually reviewed.” I encourage Mr. Quemere and the Office to communicate in order to facilitate producing records efficiently and affordably. Mr. Quemere may wish to include applicable time periods or factors to enable the search to be more efficiently processed. G. L. c. 66, § l0(a)(i). The Office must use its knowledge of the records to facilitate providing any responsive records efficiently and affordably. G. L. c. 66, § l0(a)(vii) (an agency or municipality 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 or municipality to produce records sought more efficiently and affordably).

Mark Relation, Esq. SPR22/1220 Page 3 June 8, 2022 To the extent that the requested records exist, I find the Office must identify the records and provide them in a manner consistent with the Public Records Law or identify an exemption that applies to withhold the records from disclosure. G. L. c. 66, § 10(b). Accordingly, the Office is ordered provide Mr. Quemere with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (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