Andrew Quemere v. Greenfield, City of - Police Department (SPR 20222021)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 13, 2022 SPR22/2021 Chief Robert H. Haigh, Jr. Records Access Officer Greenfield Police Department 321 High Street Greenfield, MA 01301 Dear Chief Haigh: I have received the petition of Andrew Quemere appealing the response of the Greenfield Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 8, 2022, Mr. Quemere requested: [1] The police department’s current use-of-force policies. For the purposes of this request, use of force includes unarmed force (hands, feet, etc), firearms and other types of deadly force, tasers and other electroshock devices, other “less-lethal” weapons (pepper spray, batons, flashbangs, rubber bullets, etc), and crowd-control weapons (tear gas, etc), and any other type of force. [2] A blank copy of each form used to report use-of-force incidents. If a form is part of a computer program and is not easily exportable, it is acceptable to provide screenshots. [3] All monthly and annual use-of-force reports. [4] All data on use-of-force incidents that are stored by the department’s use-of- force tracking software. Please provide the data in Excel or CSV format; if it is not feasible to provide the data in either format, please advise what formats are available. [5] All numerical/statistical reports that can be generated by the department’s use- of-force tracking software (e.g., reports showing the total number of incidents per year, the total number of incidents involving each officer, etc). Mr. Quemere requested that, these records be provided in an electronic format that is searchable and machine readable . . . . The records should be provided in a manner that preserves their original features—e.g., hyperlinks, 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

Chief Robert H. Haigh Jr. SPR22/2021 Page 2 September 13, 2022 color, images, etc. Records should not be printed out then scanned or subjected to other processes that would remove searchable, machine-readable text or other features. Furthermore, electronic documents that originated separately should not be combined into a single file. On August 19, 2022 and August 29, 2022, the Department responded. Unsatisfied with the responses, Mr. Quemere petitioned this office and this appeal, SPR22/2021, 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. 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 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 August 19th and August 29th Responses In its August 19, 2022 response, the Department states: Please find the attached documentation per your recent request. As you will see from the attached data, the start date is 2017. We do have paper copies of data preceding that date, however, you did mention that data “should not be printed then scanned.” We believe that we have fulfilled your request to the best of our ability… In its August 29, 2022 response, the Department states that “we are only able to export through pdf files at this time. With regard to providing pre-2017 records, this data can actually be found at [URL provided]. That is the only information we have available.”

Chief Robert H. Haigh Jr. SPR22/2021 Page 3 September 13, 2022 Current Appeal In his appeal, Mr. Quemere states: [T]he Greenfield Police Department stated that it had additional responsive paper records that it did not provide. I asked the department to provide these records, and it did not. The department did provide me with a link to a document that includes data submitted by the police department, but it does not include the actual reports filed by the department that I requested. Furthermore, some of the documents provided by the department do not contain searchable, machine-readable text, as required by the public records law. Additionally, I requested that the department provide copies of data as spreadsheet files. Instead, the department provided the data as PDF documents. After I followed up with the department, it stated, “Unfortunately, we are only able to export through pdf files at this time.” It gave no further explanation as to why it is not feasible to provide the data in spreadsheet format. Preferred Format G. L. c. 66, § 6A(d) provides, in pertinent part, that “[t]he records access officer shall, to the extent feasible, provide the public record in the requestor’s preferred format or, in the absence of a preferred format, in a searchable, machine readable format.” G. L. c. 66, § 6A(d); see also 950 C.M.R. 32.04(5)(d) (“to the extent feasible, provide public records to a requester in electronic format unless the record is not available in electronic form or the requester does not have the ability to receive or access the records in electronic format and if feasible, in the requester’s preferred format. In the absence of a preferred format, the records shall be provided in a searchable machine-readable form[.])” In light of Mr. Quemere’s appeal, I find the Department must clarify whether the responsive records can be provided in the format that Mr. Quemere requested. Further, based on the Department’s responses, in conjunction with Mr. Quemere’s appeal, it is unclear if the Department possesses additional records responsive to the original request. The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). To the extent that additional records exist, I find the Department must provide them in a manner consistent with the Public Records Law or identify an exemption that applies to withhold the records from disclosure. G. L. c. 66, § 10(b). See G. L. c. 66, § 10(a) (records must be provided without unreasonable delay).

Chief Robert H. Haigh Jr. SPR22/2021 Page 4 September 13, 2022 Conclusion Accordingly, the Department 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 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