Andrew Quemere v. Woburn, City of - Police Department (SPR 20222252)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 14, 2022 SPR22/2252 Chief Robert F. Rufo, Jr. Chief of Police City of Woburn Police Department 25 Harrison Avenue Woburn, MA 01801 Dear Chief Rufo: I have received the petition of Andrew Quemere appealing the response of the Woburn Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 16, 2022, Mr. Quemere requested “[a]ll police department internal affairs data submitted to the Peace Officer Standards and Training Commission [including] … data about both active and transferred officers.” The Department responded on September 26, 2022. Unsatisfied with the Department’s response, Mr. Quemere petitioned this office and this appeal, SPR22/2252, 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. 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 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 F. Rufo SPR22/2252 Page 2 October 14, 2022 records custodian must provide the responsive records. The Department’s September 26th Response In its September 26, 2022 response, the Department provided one redacted spreadsheet. Current Appeal In his appeal petition, Mr. Quemere asserts: In response to my public records request for two spreadsheets with data concerning police misconduct investigations, the Woburn Police Department only provided one of the documents. The department should possess one spreadsheet related to active officers and a second spreadsheet related to transferred officers, The department did not provide any explanation as to why it did not produce the second spreadsheet…. The department also redacted a substantial amount of the spreadsheet that it provided. The department did not cite any exemptions…or provide any explanation as to why it redacts the records. Upon review of this file and similar appeals, I find that there is pending litigation regarding related to the POST Commission and the requested records. Pending Litigation 950 C.M.R. 32.08(2)(b) provides in pertinent part: the Supervisor may deny an appeal for, among other reasons if, in the opinion of the Supervisor: 1. the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation. Please be advised that this office has reviewed the trial court’s docket and verified that the civil litigation relating to the records at issue in this appeal is active and ongoing in the Suffolk Superior Court. See Hovsepian, Scott et al. v. Massachusetts Peace Officer Standards and Training Commission (Superior Court Docket No. 2284CV00906). In a letter to this office on June 23, 2022 regarding SPR22/1395 and certain other matters related to the POST Commission, an attorney for the Massachusetts Peace Officer Standards & Training Commission (Commission) argues that “there are, in fact, relationships between the pending litigation, the types of documents sought by Mr. Quemere, and the issue of whether such documents constitute public records.” Among other things, the Commission further argues that “the parties to the litigation have addressed, and the presiding judge has inquired about, whether

Chief Robert F. Rufo SPR22/2252 Page 3 October 14, 2022 certain documentation submitted to the Commission by law enforcement agencies would constitute public records.” The Commission goes on to argue that “the discussion necessarily implicates, and the court may be called upon to decide, larger issues of whether personnel and investigatory records provided to the Commission by law enforcement agencies are subject to production in response to public records requests.” Conclusion In light of the pending litigation, I decline to opine on this matter at this time. See 950 C.M.R. 32.08(2)(b). It should be noted that a change in the status of this litigation could impact the applicability of 950 C.M.R. 32.08(2)(b). Sincerely, Manza Arthur Supervisor of Records cc: Andrew Quemere