Andrew Quemere v. Northwestern District Attorney's Office (SPR 20221840)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 23, 2022 SPR22/1840 Cynthia Von Flatern, Esq. Assistant District Attorney Northwestern District Attorney’s Office One Gleason Plaza Northampton, MA 01060 Dear Attorney Von Flatern: I have received the petition of Andrew Quemere appealing the response of the Northwestern 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 the following records or information: [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 transcripts of witness interviews related to investigations of fatal shootings by police officers that occurred from 2012 to the present; [6] All electronic data that track information related to shootings by police (both fatal and nonfatal); and [7] All reports that track statistical information about shootings by police (both fatal and nonfatal). The Office responded on May 16, 2022 and August 8, 2022, providing certain records and denying access to portions of the records pursuant to Exemption (f) of the Public Records Law. G. L. c. 4, § 7(26)(f). Unsatisfied with the Office’s responses, Mr. Quemere petitioned the Supervisor of Records and this appeal was opened. 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

Cynthia Von Flatern, Esq. SPR22/1840 Page 2 August 23, 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) (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 burden of establishing the applicability of an exemption). The Office’s May 16th and August 8th responses On May 16, 2022, the Office stated, regarding “…your April 20, 2022 request for documents regarding officer-involved shootings in the [Office] since January 1, 2012, there have been three cases since that date. Documents about the first two cases are attached herewith. Documents on the third case will follow. Please be advised that [the Office] does not electronically track information related to shootings by police and does not track statistical information about shootings by police[.]” Later in the day on May 16th, the Office provided further records responsive to Mr. Quemere’s request. The Office attached the following records to its May 16th email, “…find reports related to the third officer-involved shooting in the [Office] from January 1, 2012 to the present. The documents include State Police Arrest Report, Application for Criminal Complaint, Motor Vehicle Crash Report and Supplemental Cruiser Crash Report…” On August 8, 2022, the Office responded to Mr. Quemere’s inquiry for recorded witness interviews and transcripts in three closed cases involving police-involved shootings in the Office. The Office asserts, “[t]here are no transcripts of witness interviews. [The Office] would have some recorded interviews of witnesses. Such recording are not provided as public records. Bougas v. Chief of Police of Lexington, 371 Mass. 59, 62 (1976). The purpose for withholding is to protect the privacy of private citizens and to encourage them to come forward and speak candidly. Id.” Exemption (f) Exemption (f) permits the withholding of:

Cynthia Von Flatern, Esq. SPR22/1840 Page 3 August 23, 2022 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 v. Police Comm’r of Boston, 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. As a matter of course, witness provided information is essential to efficient and effective law enforcement. This exemption is intended to allow investigative officials to provide an assurance of confidentiality to private citizens so that they will speak openly and voluntarily about matters. Bougas v. Chief of Police of Lexington, 371 Mass 59, at 62. Any information contained in a witness statement, which if disclosed would create a grave risk of directly or indirectly identifying the voluntary witness is subject to withholding. Globe Newspaper Co., 388 Mass. at 438. The disclosure of the names and other identifying information of victims, complainants and voluntary witnesses may deter other potential witnesses and citizens from providing information to police in future investigations. Therefore, Exemption (f) will allow the withholding of the name and identifying details of any victims, complainants, and voluntary witnesses, and where the individuals can be indirectly identified even with redaction. Current appeal In his August 9th petition, Mr. Quemere states, “…it is not clear from the response that all of the recordings are interviews with private citizens. It is likely that many of the recordings are of interviews with police officers. The Office must release such recordings. To the extent that the recordings contain interviews with non-law-enforcement witnesses, it remains unclear that all of the recordings can be withheld in their entirety. It is not clear why the office cannot redact personally identifying information such as names to protect the privacy of the witnesses. If the recordings contain video, it is not clear why the office cannot blur the faces of witnesses or provide just the audio portion of the recordings to protect the privacy of the witnesses.”

Cynthia Von Flatern, Esq. SPR22/1840 Page 4 August 23, 2022 Based on the Office’s responses, it is unclear how the non-law enforcement witnesses audio and video witness statements may be withheld in their entirety, and why these statements may not be redacted to protect the anonymity of the witnesses under Exemption (f). Also, it is uncertain how the police officers witness statements given during an internal affairs investigation were voluntary, meriting the protection afforded voluntary witnesses under Exemption (f). Accordingly, I find the Office has not demonstrated how all the witness statements could be withheld in their entirety. See 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). Any non- exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Further, it is unclear whether the Office can redact or alter the audio and/or video recordings to protect the anonymity of the civilian witnesses. The Office must clarify these matters. Conclusion Accordingly, the Office is ordered to provide Mr. Quemere with a response to his request in a manner consistent with 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 the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Andrew Quemere