Andrew Quemere v. Pittsfield, City of - Police Department (SPR 20222746)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 7, 2022 SPR22/2746 Abigail Hunt Record Access Officer Pittsfield Police Department 39 Allen Street Pittsfield, MA 01201 Dear Ms. Hunt: I have received the petition of Andrew Quemere appealing the response of the Pittsfield Police Department (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 2, 2022, Mr. Quemere requested numerous records related to a named officer regarding an identified 2020 incident. Prior Appeal This request was the subject of a previous appeal. See SPR22/2700 Determination of the Supervisor of Records (November 30, 2022). The Department responded on November 22, 2022. Unsatisfied with the response, Mr. Quemere petitioned this office and this appeal, SPR22/2746, 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 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

Abigail Hunt SPR22/2746 Page 2 December 7, 2022 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 November 22nd Response In its November 22, 2022 response, the Department provided numerous redacted records. Current appeal In an email dated November 30, 2022, Mr. Quemere stated, “the department has produced a redacted copy of the chief’s report and two unredacted emails… The department has not cited any exemptions or provided any explanation as to why it redacted the report… Additionally, the department did not address all of the items that I requested.” On December 1, 2022, the Department provided a further response and stated that Mr. Quemere has “been provided the record the department is in possession, custody, and control of….” Following the Department’s December 1, 2022 correspondence, Mr. Quemere stated, “…the police chief’s report states that he reviewed many of the records I requested…” In light of the claims made by Mr. Quemere, it is unclear if the Department possesses additional records that may be responsive to the 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). Furthermore, it is unclear what exemption(s) the Department is claiming to withhold the redacted information from disclosure. To deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § 10(b)(iv); see also 950 C.M.R. 32.06(3)(c)(4). A records custodian is required to not only cite an exemption but to specifically explain the applicability of the exemption to the requested records for compliance with the Public Records Law. G. L. c. 66, § 10(b)(iv). The Department must clearly cite an exemption(s) and explain with specificity how the exemption(s) permits it to redact the information from disclosure. Conclusion Accordingly, the Department is ordered to provide Mr. Quemere with a response to the

Abigail Hunt SPR22/2746 Page 3 December 7, 2022 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. Sincerely, Manza Arthur Supervisor of Records cc: Andrew Quemere