Andrew Quemere v. Lowell, City of - Police Department (SPR 20230084)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 30, 2023 SPR23/0084 Renee Donohue Administrative Assistant Lowell Police Department Office of Professional Standards 50 Arcard Drive Lowell, MA 01852 Dear Ms. Donohue: I have received the petition of Andrew Quemere appealing the response of the Lowell 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: [1] The police department’s current use-of-force policies. For the purposes of this request, use of force includes unarmed force (hands, feet, etc), firearms and other types of deadly force, tasers and other electroshock devices, other “less-lethal” weapons (pepper spray, batons, flashbangs, rubber bullets, etc), and crowd-control weapons (tear gas, etc), and any other type of force. [2] A blank copy of each form used to report use-of-force incidents. If a form is part of a computer program and is not easily exportable, it is acceptable to provide screenshots. [3] All monthly and annual use-of-force reports. [4] All data on use-of-force incidents that are stored by the department’s use-of- force tracking software. Please provide the data in Excel or CSV format; if it is not feasible to provide the data in either format, please advise what formats are available. [5] All numerical/statistical reports that can be generated by the department’s use- of-force tracking software (e.g., reports showing the total number of incidents per year, the total number of incidents involving each officer, etc). Mr. Quemere requested that, these records be provided in an electronic format that is searchable and machine readable . . . . The records should be provided in a manner that preserves their 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

Renee Donohue SPR23/0084 Page 2 January 30, 2023 original features—e.g., hyperlinks, color, images, etc. Records should not be printed out then scanned or subjected to other processes that would remove searchable, machine-readable text or other features. Furthermore, electronic documents that originated separately should not be combined into a single file. Previous Appeals This request was the subject of previous appeals. See SPR22/2034 Determination of the Supervisor of Records (September 14, 2022) and SPR22/2371 Determination of the Supervisor of Records (November 2, 2022). In the November 2nd determination, the Department was ordered to provide Mr. Quemere with a response to his request. On November 7, 2022, the Department responded. Unsatisfied with the response, Mr. Quemere petitioned this office and this appeal, SPR23/0084, was opened as a result. The Department provided a supplemental response on January 24, 2023. 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 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 7th and January 24th Responses In its November 7, 2022 response, the Department states: I am responding to Determination SPR22/2371 in relation to the watermarks on the responsive records. The Professional Standards Division of the Lowell Police Department cannot provide the documents without watermarks whereas it is our practice to watermark all documents that leave our office to protect the integrity of the data and prevent tampering.

Renee Donohue SPR23/0084 Page 3 January 30, 2023 As the Supervisor of Records stated in Determination SPR22/2371, “the Department has provided the responsive records in searchable, machine readable format and has explained that it is unable to provide the responsive records in Mr. Quemere’s preferred format”. Therefore the City of Lowell considers this case closed. In its supplemental January 24th response the Department reiterates that, “the Professional Standards Division of the Lowell Police Department cannot provide the documents without watermarks where it is our practice to watermark all documents that leave our office to protect the integrity of the data and prevent tampering.” Current Appeal In his appeal, Mr. Quemere asserts, “the department refused to provide the documents in their original non-watermarked format, claiming it could do so because it was the department’s ‘practice’ to watermark documents in response to records requests. The department cannot violate the public records law by adopting a ‘practice’ of doing so.” Native Form In regard to the watermarks on the responsive records, “[a] records access officer shall presume a requestor prefers electronic copies and must provide electronic records in native form when possible.” 950 C.M.R. 32.07(1)(d). Based on Mr. Quemere’s claim, coupled with the Department’s responses, I find the Department has not met its burden in complying with 950 C.M.R. 32.07(1)(d) when it provided the responsive records with watermarks to Mr. Quemere. Conclusion Accordingly, the Department 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 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