Andrew Quemere v. Methuen, City of - Police Department (SPR 20221368)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 23, 2022 SPR22/1368 Brittany Getchell Court Liaison Methuen Police Department 90 Hampshire Street Methuen, MA 01844 Dear Ms. Getchell: I have received the petition of Andrew Quemere appealing the response of the Methuen Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 1, 2022, Mr. Quemere requested various internal affairs records and arrest reports regarding a certain law enforcement officer. Previous Appeal The records sought by Mr. Quemere were the subject of a previous appeal. See SPR22/1140 Supervisor of Records Determination (May 27, 2022). In SPR22/1140, the Department informed this Division that it would provide a supplemental response and did so on June 13, 2022. Unsatisfied with this response, Mr. Quemere petitioned this office and this appeal, SPR22/1368, 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 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

Brittany Getchell SPR22/1368 Page 2 June 23, 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); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Department’s Responses In its initial and supplemental responses, the Department withheld the responsive records pursuant to Exemption (a) of the Public Records Law. Specifically, the Department cites G.L. ch. 41, § 97D and G.L. ch. 6, § 172, respectively. Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7(26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public’s right to inspect records under the Public Records Law is restricted. See Att’y Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either “shall not be a public record,” “shall be kept confidential” or “shall not be subject to the disclosure provision of the Public Records Law.” The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. G.L. c. 41, 97D With respect to G.L. c. 41, 97D, the Department stated: The internal affairs (“IA”) report to which the MPD’s previous response referred related to a claim of police wrongdoing, asserted by the domestic violence-

Brittany Getchell SPR22/1368 Page 3 June 23, 2022 charged arrestee. That internal affairs report, dated December 6, 2021, elaborates on that allegation and likewise refers to the domestic violence call that was the basis of the original police action in this matter. Accordingly, the MPD continues to maintain that the internal affairs report is not subject to disclosure, based upon Exemption (a) (MGL c. 4, Section 7, clause 26(a)) due to the City’s required compliance with MGL Chapter 41, Section 97D, which states in relevant part: “All reports of rape and sexual assault or attempts to commit such offenses, all reports of abuse perpetrated by family or household members, as defined in section 1 of chapter 209A [domestic violence reports], and all communications between police officers and victims of such offenses or abuse shall not be public reports and shall be maintained by the police departments in a manner that shall assure their confidentiality …” G. L. c. 41, § 97D states in relevant part: All reports of rape and sexual assault or attempts to commit such offenses, all reports of abuse perpetrated by family or household members, as defined in section 1 of chapter 209A, and all communications between police officers and victims of such offenses or abuse shall not be public reports and shall be maintained by the police departments in a manner that shall assure their confidentiality . . . G. L. c. 41, § 97D. Based on the Department’s response, it is unclear how the records relating to an internal affairs investigation falls within the type of records contemplated in G. L. c. 41 § 97D. A records custodian is required to not only cite an exemption but to specifically explain the applicability of the exemption to the requested records for compliance with the Public Records Law. G. L. c. 66, § 10(b)(iv). G.L. ch. 6,§ 172 - CORI With respect to the criminal offender record information (CORI) statute, the Department stated: These documents concern a police call regarding a claim of domestic violence; and since the documentation also refers to the arrest of the arrestee, and since the documents were created in response to a domestic violence call and the arrest of the arrestee, this documentation warrants continued non-disclosure under both Section 97D and the CORI statute. The current definition of CORI is as follows:

Brittany Getchell SPR22/1368 Page 4 June 23, 2022 “Criminal offender record information”, records and data in any communicable form compiled by a Massachusetts criminal justice agency which concern an identifiable individual and relate to the nature or disposition of a criminal charge, an arrest, a pre-trial proceeding, other judicial proceedings, previous hearings conducted pursuant to section 58A of chapter 276 where the defendant was detained prior to trial or released with conditions under subsection (2) of section 58A of chapter 276, sentencing, incarceration, rehabilitation, or release. Such information shall be restricted to information recorded in criminal proceedings that are not dismissed before arraignment. Criminal offender record information shall not include evaluative information, statistical and analytical reports and files in which individuals are not directly or indirectly identifiable, or intelligence information. Criminal offender record information shall be limited to information concerning persons who have attained the age of 18 and shall not include any information concerning criminal offenses or acts of delinquency committed by any person before he attained the age of 18; provided, however, that if a person under the age of 18 was adjudicated as an adult in superior court or adjudicated as an adult after transfer of a case from a juvenile session to another trial court department, information relating to such criminal offense shall be criminal offender record information. Criminal offender record information shall not include information concerning any offenses which are not punishable by incarceration. G. L. c. 6, § 167 (emphasis added). In light of the above, the Department has not met its burden in withholding the records under CORI. Specifically, where the records in question pertain to an internal affairs report, it is unclear whether these records were recorded in criminal proceedings. Conclusion Accordingly, the Department is ordered to review the records, redact where necessary, and provide the responsive records to Mr. Quemere, in a manner consistent with this order, the Public Records Law, and its Regulations 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