Andrew Quemere v. Peabody, City of - Police Department (SPR 20230082)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 27, 2023 SPR23/0082 Captain Douglas S. Marcus Peabody Police Department 6 Allens Lane Peabody, MA 01960 Dear Captain Marcus: I have received the petition of Andrew Quemere appealing the response of the Peabody 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 October 16, 2022, Mr. Quemere requested “[a]ll reports related to the June 1989 arrest of [an identified person], who was charged with operating under the influence of liquor, operating under the influence of drugs, and operating to endanger.” On October 19, 2022, the Department provided a response along with the incident Report Number 89008924, in redacted format under Exemption (a) of the Public Records Law and the Criminal Offender Record Information Act (CORI). As a result, on October 19, 2022, Mr. Quemere petitioned the Supervisor of Records (Supervisor), and appeal SPR22/2372 was opened. In response to the appeal, the Department provided a supplemental response on October 24, 2022. As a result, I closed the appeal. See SPR22/2372 Determination of the Supervisor (November 1, 2022). As a result of the Department’s October 24th response, Mr. Quemere further petitioned the Supervisor, and the current appeal, SPR23/0082, was opened. 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). 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

Captain Douglas S. Marcus SPR23/0082 Page 2 January 27, 2023 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 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 After the current appeal was opened, a senior attorney on my legal staff and a representative of the Department conferred by telephone. It is my understanding that the Department has agreed to provide the record for this office to conduct an in camera inspection of the incident report for a final determination by the Supervisor of any exemption claims in the Public Records Law to redact exempt material from the record and provide the balance of the record to the public. In Camera Inspection of the Record In order to facilitate a determination as to the applicability of the Exemption (a) claim made by the Department to withhold the redacted content in the record under the Public Records Law, the Department must provide this office with an un-redacted copy of the responsive record for in camera inspection. See 950 C.M.R. 32.08(4). After I complete my review of the records, I will return the records to the Department’s custody and issue an opinion on the public or exempt nature of the records. The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Mass. Comm’n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone

Captain Douglas S. Marcus SPR23/0082 Page 3 January 27, 2023 under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. Please be aware, any cover letter submitted to accompany the relevant records may be subject to disclosure. Order Accordingly, the Department is ordered to provide this office with an un-redacted copy of the responsive record for in camera inspection without delay. Sincerely, Manza Arthur Supervisor of Records cc: Andrew Quemere