Andrew Quemere v. Massachusetts Port Authority (SPR 20222250)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 19, 2022 SPR22/2250 Christina Gibson Public Records Access Officer Massachusetts Port Authority One Harborside Drive, Suite 200S East Boston, MA 02128 Dear Ms. Gibson: I have received the petition of Andrew Quemere appealing the response of the Massachusetts Port Authority (Authority) to his 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 numerous records regarding use of force incidents and procedures possessed by the Authority. Prior Appeal The requested records were the subject of a prior appeal. See SPR22/2022 Determination of the Supervisor of Records (September 19, 2022). In my September 19th determination, I found that the Authority intended on providing a response and closed the appeal. On September 23, 2022, the Authority provided a further response. Unsatisfied with the Authority’s response, Mr. Quemere petitioned this office and this appeal, SPR22/2250 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 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

Christina Gibson SPR22/2250 Page 2 October 19, 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 Authority’s September 19th response In its September 19, 2022 response, the Authority provided Mr. Quemere with responsive records. The Authority further stated, “[w]e are in the process of reviewing the remainder of your request.” Current Appeal In his current appeal, Mr. Quemere indicated that the provided records are not machine readable and it was unclear if the Authority had further responsive records. Preferred Format A records access officer must, to the extent feasible, provide public records to a requestor in electronic format unless the record is not available in electronic form or the requestor does not have the ability to receive or access the records in electronic format and if feasible, in the requestor’s preferred format. In the absence of a preferred format, the records must be provided in a searchable machine-readable form. See 950 C.M.R. 32.04(5)(d). In light of Mr. Quemere’s appeal, I find the Authority must clarify whether the responsive records can be provided in the format that Mr. Quemere requested. Based on the Authority’s response, it is unclear if it possesses additional records responsive to the above 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). The Authority must clarify this matter. Conclusion Accordingly, the Authority 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.

Christina Gibson SPR22/2250 Page 3 October 19, 2022 Sincerely, Manza Arthur Supervisor of Records cc: Andrew Quemere