Andrew Quemere v. Plymouth County District Attorney's Office (SPR 20221295)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 17, 2022 SPR22/1295 Patrick Nevins, Esq. Records Access Officer Plymouth County District Attorney’s Office 166 Main Street Brockton, MA 02301 Dear Attorney Nevins: I have received the petition of Andrew Quemere appealing the response of the Plymouth County District Attorney’s Office (Office/PCDAO) 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: [1] The [O]ffice’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 [and;] [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 SPR22/0351 Determination of the Supervisor of Records (February 22, 2022). In my February 22nd determination, I directed the Office to provide additional information regarding its fee estimate. The Office provided a supplemental response on March 9, 2022. Unsatisfied with the Office’s response, Mr. Quemere petitioned this office and this appeal, SPR22/1295, 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

Patrick Nevins, Esq. SPR22/1295 Page 2 June 17, 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. 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. Current appeal Items 1 and 4 In his appeal petition, Mr. Quemere states the following: In response to my request for a copy of the office’s Brady list, the office linked me to a webpage which contains a screenshot of an Excel spreadsheet. I have asked the office multiple times to provide me with the original Excel spreadsheet, but the office has not done so or acknowledged that I [sic] for this document. The office previously stated, “[O]ur office does have available copies of templates for each officer to be used by ADA’s to make Brady disclosures.” However, the office never provided these documents. Based on the foregoing, it is unclear if the Office possesses these records and intends on providing them to Mr. Quemere. 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). Accordingly, I find the Office must clarify whether it possesses responsive documents.

Patrick Nevins, Esq. SPR22/1295 Page 3 June 17, 2022 Fee Estimates – Agencies Items 2 and 3 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. An agency may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.05) per page may be assessed for a black and white single or double-sided photocopy of a public record. G. L. c. 66, § 10(d)(i). Agencies may not assess a fee for the first four (4) hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested. G. L. c. 66, § 10(d)(ii). Where appropriate, agencies may include as part of the fee an hourly rate equal to or less than the hourly rate attributed to the lowest paid employee who has the necessary skill required to search for, compile, segregate, redact or reproduce a record requested, but the fee shall not be more than $25 per hour. Id. A fee shall not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv). See G. L. c. 66, § 10(d)(ii); 950 C.M.R. 32.06(4). A fee shall not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor under a petition under G. L. c. 66, § 10(d)(iv). G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4). The Office’s March 9th fee estimate In its March 9, 2022 estimate, the Office explains that it “. . . do[es] not have a central depository for each specific Brady notice of disclosure made to criminal defendants and/or defense counsel advising them of the existence of Brady information or an officer’s placement on a Brady list. To obtain copies of communication to defendants and/or defense counsel we would have to determine which cases each officer was involved in, pull the files and boxes, and search for any copies of a notice of disclosure made to defendants or defense counsel.” The Office posits, “[f]urther compounding the difficulty in doing so is that our internal DAMION case management system only tracks officers who are summonsed on a case. A review of our internal system would provide an incomplete list of cases in which a Brady disclosure (i.e. communication) may have been made because we are not able to determine all of the cases in which an officer was involved by searching that officer’s name; only the ones in which he or she was summonsed. A case in which a Brady disclosure (i.e. communication) was made prior to the case reaching an event where officers would be summonsed would not be

Patrick Nevins, Esq. SPR22/1295 Page 4 June 17, 2022 captured in a review of our internal case management system. We would need to work with each individual police department to secure a list of every case an officer was involved in, search our internal case management system for that case, and locate and review each trial folder or box for Brady communication.” As a result of the tasks involved in searching for the responsive records, the Office provided the following estimate: - PCDAO estimates there to be at least 350 relevant cases to be searched. - PCDAO also provides a generous estimate of 30 minutes to complete the necessary search of each case. (2) minutes to input the case identifying information and determine the location of the file or trial box(es); (20) minutes to retrieve the case file or trial box(es). This is a very general estimation. PCDAO has files and trial box(es) in its main office in Brockton, as well as in its four District Court locations (Hingham, Plymouth, Brockton, Wareham). If a file is located in Plymouth, it would take an employee 45 minutes to bring it to the Public Records staff in Brockton; (8) minutes to review the file, locate any notice of disclosure or further Brady information, and determine whether any notice of disclosure or further “Brady information” is subject to a protective order. 30 minutes for 350 case results in the following good faith estimate: Labor Time: 175 hours Labor Charged: $17.44 per hour Total Labor Hours Waived: 4.00 Estimated Total: $2,982.24 Based on the Office’s response, it remains unclear why the Office requires “20 minutes to retrieve the case file or trial box.” Please note, a custodian of records cannot charge a requestor for the time it takes to search for responsive records based on the organization and management of its records. Public records must be maintained and kept in a manner that allows access by the public, as they are subject to mandatory disclosure upon request. G. L. c. 66, § 10(a); see also Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979). It is ------------------------------ additionally uncertain how the Office requires “(2) minutes to input the case identifying information and determine the location of the file or trial box(es)[.]” The Office must provide additional information detailing the type of information being inputted and the process it takes to input this information. The Office also stated that it is assessing a fee for “(8) minutes to review the file, locate any notice of disclosure or further Brady information, and determine whether any notice of disclosure or further ‘Brady information’ is subject to a protective order.” However, it is unclear how the Office requires 8 minutes to review each case file. Particularly, it is uncertain the number of pages there are in each case file and how many minutes per page the Office requires to review the responsive records. The Office must clarify these issues.

Patrick Nevins, Esq. SPR22/1295 Page 5 June 17, 2022 In his appeal petition, Mr. Quemere states: The office also provided me with a large fee estimate for many of the records I requested, stating it would need to search through boxes of records. However, most documents are created on computers and are searchable. The office has never indicated why it is not possible to perform electronic searches for these records, which would be more efficient than searching through boxes of physical records and would be less costly. Furthermore, the office states that it is difficult to search for these records because it “do[es] not have a central depository for each specific Brady notice of disclosure made to criminal defendants and/or defense counsel.” However, the office does have a spreadsheet containing the names of and other information about the officers. Because many of these records exist as electronic documents, the office should be capable of performing electronic searches using the information about the officers stored on the spreadsheet. Because the office’s fee estimate is based on the assumption that it must search for all of the records in boxes, it is not clear why the office requires so much time to search for these records. The office must clarify the extent to which it can search for these records electronically and, if it still intends to charge a fee, it must provide a breakdown showing how much time it will spend performing electronic searches and how much time it will spend searching physical records. Based on the foregoing, I find the parties are encouraged to communicate further to determine whether any responsive records may be provided more efficiently and affordably. See G. L. c. 66, § 10(b)(vii) (an agency 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 municipality to produce records sought more efficiently and affordably). Conclusion Accordingly, the Office 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 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