Andrew Quemere v. Bristol County District Attorney's Office (SPR 20222040)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 15, 2022 SPR22/2040 Mary Lee, Esq. Assistant District Attorney Bristol County District Attorney’s Office 888 Purchase Street New Bedford, MA 02740 Dear Attorney Lee: I have received the petition of Andrew Quemere appealing the response of the Bristol County 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). Previous Appeal This request was the subject of a previous appeal. See SPR22/1746 Determination of the Supervisor of Records (August 10, 2022). In my August 10th determination, I closed the administrative appeal because the Office provided a further response. Unsatisfied with the Office’s response, Mr. Quemere petitioned this office and this appeal, SPR22/2040, was opened as a result. 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

Mary Lee, Esq. SPR22/2040 Page 2 September 15, 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); 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. Fee estimate - agencies An agency may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.05) per page may be assessed for a black and white single or double-sided photocopy of a public record. G. L. c. 66, § 10(d)(i). Agencies may not assess a fee for the first 4 hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested. G. L. c. 66; § 10(d)(ii). Where appropriate, agencies may include as part of the fee an hourly rate equal to or less than the hourly rate attributed to the lowest paid employee who has the necessary skill required to search for, compile, segregate, redact or reproduce a record requested, but the fee shall not be more than $25 per hour. Id. A fee shall not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv). See G. L. c. 66, §10(d)(ii); 950 C.M.R. 32.06(4). Petitions relating to fees must be submitted to the Supervisor within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). The Office’s August 9th Response In its August 9, 2022 response, the Office states it is withholding the responsive records

Mary Lee, Esq. SPR22/2040 Page 3 September 15, 2022 pursuant to Exemptions (c) and (f). Additionally, the Office asserts: [It] has already expended more than the statutory free-four-hour time period and has provided a large amount of information in a manner that protects privacy rights and the investigatory privilege. This office notified Mr. Quemere on May 5, that any further response would require payment. Mr. Quemere has not agreed to pay for any redaction or for any further records. If your office orders production of additional records, this office will demand payment from Mr. Quemere in advance. In a further response sent on September 15, 2022, the Office states: The requestor…suggests that fees are not available under the Public Records Law in this matter because more than ten business days have passed since his request was received on April 21, 2022. A response was sent to him on May 5, 2022 within ten business days….[A]nd he was provided with nine responsive reports and the online website where the public records related to a fatal shooting on 11- 22-21 could be accessed. On May 5, 2022 within ten business days this office informed him that this office was not waiving any fees and any further records would be assessed at $25 per hour….Mr. Quemere suggests that records, such as reports and transcripts and video recordings can easily be provided. Such redactions in seven different investigations would require a large number of hours far in excess of the time required by the Public Records Law. In other words, this office has provided Mr. Quemere with notice, within ten business days and again within four months, that no further records can be provided without a fee, if this office is ordered to provide any additional records. Current Appeal In his appeal, Mr. Quemere states that “[t]he office has failed to demonstrate that the responsive records are exempt under either exemption.” Further, Mr. Quemere argues: The office states that it would assess a fee for any further records provided in response to this request. However, more than 10 business days have passed since the office received my request, and it has failed to provide an itemized fee estimate, as required by the public records law. Therefore, the office is not permitted to charge any fees with respect to this request. Where the Office responded to Mr. Quemere within ten business days under subsection (b), I find that the Office has complied with G. L. c. 66, § 10(e). However, it is unclear whether the Office is assessing a fee for redactions that are not required by law. See G. L. c. 66, § l0(d)(iii) (a fee shall not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv)).

Mary Lee, Esq. SPR22/2040 Page 4 September 15, 2022 Further, although the Office claims it will need to charge Mr. Quemere if this office orders it to provide additional responsive records, the Office has not provided a total estimate with regard to how long it will take to compile, review, and prepare responsive documents for production. It is also not clear what tasks are involved to prepare responsive records for production. Also, the Office indicates that it would charge an hourly rate of $25. However, it is unclear whether the Office has used the hourly rate of the lowest paid employee capable of performing the task(s). See G. L. c. 66, § 10(d)(ii); 950 C.M.R. 32.07(2)(i). As such, the Office must provide further details regarding its fee estimate. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). I encourage Mr. Quemere and the Office to communicate further in order to facilitate producing records efficiently and affordably. Mr. Quemere may wish to narrow his request. The Office must use its knowledge of the records to facilitate providing any responsive records. G. L. c. 66, § l0(a)(vii) (an agency or municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency or municipality to produce records sought more efficiently and affordably). Conclusion Accordingly, the Office is ordered to provide Mr. Quemere with a response to his 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 the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Andrew Quemere