Andrew Quemere v. Berkshire District Attorney's Office (SPR 20221753)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 11, 2022 SPR22/1753 Richard M. Dohoney, Esq. Assistant District Attorney Berkshire District Attorney’s Office 7 North Street Pittsfield, MA 01201 Dear Attorney Dohoney: I have received the petition of Andrew Quemere appealing the response of the Berkshire District Attorney’s Office (Office) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 20, 2022, Mr. Quemere requested: [1] All video and audio recordings of fatal shootings by police officers that occurred from January 1, 2012 to the present[;] [2] All final reports on fatal shootings by police officers that occurred from 2012 to the present[;] [3] All video and audio recordings of witness interviews related to investigations of fatal shootings by police officers that occurred from 2012 to the present[;] [4] All transcripts of witness interviews related to investigations of fatal shootings by police officers that occurred from 2012 to the present[;] [5] All electronic data that track information related to shootings by police (both fatal and nonfatal)… [6] All reports that track statistical information about shootings by police (both fatal and nonfatal)[.] On May 3, 2022, the Office responded. Unsatisfied with the Office’s response, Mr. Quemere petitioned this office and this appeal, SPR22/1753, 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 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

Richard M. Dohoney, Esq. SPR22/1753 Page 2 August 11, 2022 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 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 Office’s May 3rd Response In its May 3, 2022 response, the Office cites Exemption (f) to withhold the responsive records. The Office asserts that “[t]ranscripts and videos of voluntary witness statements are exempt from disclosure under [Exemption (f)].” Exemption (f) Exemption (f) permits the withholding of: investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest G. L. c. 4, § 7(26)(f). A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 371 Mass. 59, 62 (1976). Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Att’y Gen., 52 Mass. App. Ct. 244, 248 (2001); Reinstein, 378 Mass. 281, 290 n.18 (1979). Exemption (f) invites a “case-by-case consideration” of whether disclosure “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” See Reinstein, 378 Mass. at 289-90.

Richard M. Dohoney, Esq. SPR22/1753 Page 3 August 11, 2022 Burden of specificity in claiming exemptions Under the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. 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 . . .”); see also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. See also Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). The Office’s response did not contain the specificity required in a denial of access to public records. The Office merely cites Exemption (f) without any explanation of the applicability of the exemption to the responsive records. It is unclear why the Office cannot redact identifying information from the responsive records to preserve anonymity or confidentiality. See Reinstein, 378 Mass. at 289-90 (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). 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, Manza Arthur Supervisor of Records cc: Andrew Quemere