Andrew Quemere v. Haverhill, City of - Police Department (SPR 20222430)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 9, 2022 SPR22/2430 Aniela Ricci Records Department Haverhill Police Department 40 Bailey Boulevard Haverhill, MA 01832 Dear Ms. Ricci: I have received the petition of Andrew Quemere appealing the response of the Haverhill 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 five categories of records relating to the Department’s use-of-force policies, reports, and data. Previous Appeal This request was the subject of a previous appeal. See SPR22/2027 Determination of the Supervisor of Records (September 19, 2022). In my September 19th determination, I ordered the Department to clarify its fee estimate and encouraged Mr. Quemere and the Department to communicate directly in order to facilitate providing records more efficiently and affordably. Subsequently, the Department responded on September 30, 2022. Unsatisfied with the Department’s response, Mr. Quemere appealed, and this case 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 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

Aniela Ricci SPR22/2430 Page 2 November 9, 2022 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. Current Appeal In his appeal petition, Mr. Quemere states that: In an October 25 email, the department asked if [Mr. Quemere] would like to be provided with a fee estimate. This email came more than 10 business days after [the Supervisor’s] decision and also more than 10 business days after [Mr. Quemere’s] telephone conversation with the department. Therefore, the department cannot charge any fees. G. L. c. 66, § 10(e) G. L. c. 66, § 10(e) provides that “[a] records access officer shall not charge a fee for a public record unless the records access officer responded to the requestor within 10 business days under subsection (b).” In this case, Mr. Quemere submitted his request after business hours on August 8, 2022, and the Department provided its initial response on August 23, 2022, within 10 business days, providing some responsive records and a fee estimate for others. Accordingly, I find the Office may assess a fee to produce responsive records. The Department’s September 30th and October 25th Responses In its September 30, 2022 letter, the Department sought to communicate with Mr. Quemere in order to narrow the scope of his request. In its October 25th email, the Department states that it will “gladly send [Mr. Quemere] a final estimate using [its] original estimate combined with the information and pricing supplied by the vendor.” Additionally, the Department describes some of the reports that it is able to run from its database and states that “running these reports would likely incur little to no fees, and would not require assistance from the vendor.” In its September 30th and October 25th responses, the Department has not denied Mr. Quemere any access to records, but is seeking clarification regarding the scope of his request. Please be advised that it is valid for the custodian of records to 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.” See G. L. c. 66, § 10(b)(vii).

Aniela Ricci SPR22/2430 Page 3 November 9, 2022 In his appeal petition, Mr. Quemere indicates that he has stated to the Department that he “was not narrowing the scope of [his] request.” Conclusion Where Mr. Quemere has stated that he will not narrow the scope of his request, the Department 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 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