Andrew Quemere v. Lowell, City of - Law Department (SPR 20221304)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 16, 2022 SPR22/1304 John Pyers Executive Secretary City of Lowell Law Department & License Commission City Hall 375 Merrimack Street, 3rd Floor Lowell, MA 01852 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. See 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…” Previous Appeal This request was the subject of a previous appeal. See SPR21/1112 Determination of the Supervisor of Records (May 17, 2022). The City responded on May 25, 2022. Unsatisfied with the City’s response, Mr. Quemere petitioned this office and this appeal, SPR22/1304, 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 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 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 SPR22/1304 Page 2 June 16, 2022 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); -se-e -a-ls-o 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The City’s May 25th Response In its May 25, 2022 response, the City stated: Please note our department fulfilled this request releasing the requested document to Mr. Quemere in an electronic format. It was sent as an Excel spreadsheet that was saved as a PDF so it could be watermarked and protected from tampering. It is the practice of the Lowell Police Department’s Office of Professional Standards to watermark all documents that are released in order to track and protect the integrity of the data. Excel does not have a watermark option; however, this department was able to find a way to insert a graphic onto an Excel sheet that mirrors a watermark image so that Mr. Quemere’s needs could be met. This Excel sheet has been attached for Mr. Quemere. Current Appeal In his current appeal, Mr. Quemere states: In response to my request for data submitted to the Peace Officer Standards and Training Commission, the city of Lowell provided an Excel spreadsheet. Instead of providing the original, unaltered document, the city provided a watermarked copy despite my objection. Please order the city to provide the original, unaltered version of the document. Furthermore, the city was required to submit two spreadsheets to the POST Commission, one related to active officers and one related to transferred officers. The city only provided the spreadsheet related to active officers. Please order the city to provide the remaining document. On June 8, 2022, the City provided a responsive record regarding the transferred officers. Pending Litigation 950 C.M.R. 32.08(2)(b) provides in pertinent part: the Supervisor may deny an appeal for, among other reasons if, in the opinion of the Supervisor: 1. the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation.

John Pyers SPR22/1304 Page 3 June 16, 2022 Please be advised that this office has reviewed the trial court’s docket and verified that the civil litigation relating to the records at issue in this appeal is active and ongoing in the Worcester Superior Court. See New England Police Benevolent Assoc., Inc., and Daniel Gilbert v. Massachusetts Peace Officer Standards and Training Commission (Superior Court Docket No. 2285 CV 00555C). Conclusion In light of the pending litigation, I decline to opine on this matter at this time. See 950 C.M.R. 32.08(2)(b). It should be noted that a change in the status of this litigation could impact the applicability of 950 C.M.R. 32.08(2)(b). Sincerely, Rebecca S. Murray Supervisor of Records cc: Andrew Quemere