Andrew Quemere v. Andover, Town of - Police Department (SPR 20221298)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 17, 2022 SPR22/1298 Mike Kirk Records Supervisor Town of Andover Police Department 32 North Main Street Andover, MA 01810 Dear Mr. Kirk: I have received the petition of Andrew Quemere appealing the response of the Town of Andover Police Department (Department) request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Quemere the following records: “All arrest reports, summons reports, and other police reports related to assault and battery charges, and any related charges against [an identified person], and All mugshots related to the [identified person’s arrest].” On June 3, 2022, the Department denied Mr. Quemere’s request in its entirety under Exemption (a) of the Public Records Law and G. L. c. 41, § 97D. As a result, Mr. Quemere petitioned the Supervisor of Records (Supervisor), and this appeal was opened. 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) (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 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

Mike Kirk SPR22/1298 Page 2 June 17, 2022 burden of establishing the applicability of an exemption). The Department’s response to this appeal After this appeal was opened, the Department informed this office that the underlying incident resulted in a summons, not an arrest; therefore, the Department does not have a mugshot or booking photo of the identified individual. In addition, the Department informed an attorney on the Public Records Division’s staff, “[t]he underlying incident report does have photos, including of at least two individuals – some of which are of the [identified individual].” The Department is withholding the record(s) under G. L. c. 41, § 97D, in their entirety. In camera inspection In order to facilitate a determination as to the applicability of the Department’s claim of G. L. c. 41, § 97D as it operates through Exemption (a) to withhold the records, the Department must provide this office with un-redacted copies of the responsive records for in camera inspection. See 950 C.M.R. 32.08(4). After I complete my review of the records, I will return the records to the Town’s custody and issue an opinion on the public or exempt nature of the records. The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Mass. Comm’n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. Please be aware, any cover letter submitted to accompany the relevant records may be subject to disclosure. Order Accordingly, the Department is ordered to provide this office with un-redacted copies of

Mike Kirk SPR22/1298 Page 3 June 17, 2022 the responsive record(s) for in camera inspection without delay. Sincerely, Rebecca S. Murray Supervisor of Records cc: Andrew Quemere