Andrew Quemere v. Greenfield, City of - Police Department (SPR 20230217)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 21, 2023 SPR23/0217 Gillian Halkett Records Clerk Greenfield Police Department 321 High Street Greenfield, MA 01301 Dear Ms. Halkett: I have received the petition of Andrew Quemere appealing the response of the Greenfield Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 24, 2023, Mr. Quemere requested all videos and reports related to the arrest of an identified individual. The Department provided a response on February 3, 2023. Unsatisfied with the Department’s response, Mr. Quemere petitioned this office and this appeal, SPR23/0217, was opened as a result. While this appeal was pending, the Department provided supplemental responses on February 15, 2023, February 16, 2023 and February 21, 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(d)(iv) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based…”); 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). 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

Gillian Halkett SPR23/0217 Page 2 February 21, 2023 The Department’s February 3rd, 15th, and 21st Responses In its February 3, 2023 response, the Department cited Exemption (f) of the Public Records Law in order to withhold the requested records and stated that “[t]his report and supporting documentation is currently an open criminal matter and without authorization from the District Attorney’s office we are unable to release information at this time.” In an email dated February 15, 2023, a Department representative informed a staff attorney of the Public Records Division that the requested records directly relate to a criminal case for which the docket number is 2241CR1400. In a follow-up email dated February 16, 2023, a Department representative explained that “[t]he records involved in this case resulted in a criminal arrest (CORI Information). All video, reports, etc have been provided to the District Attorney’s office as evidence to assist in further prosecution of the alleged crimes involved. Releasing such records/video may not only prejudice the Commonwealth’s case but also the defense, especially in their ability to pick a fair and impartial jury.” In an additional email dated February 21, 2023, the Department further clarified that “[i]n this particular case [the defendant] was arrested and charged for crimes that occurred pre-arrest, during the arrest, and post arrest…[.] The charging of a crime does not legally happen until a clerk reviews documents submitted to them in an application for complaint. That can occur before or after a physical arrest, in this particular case there was no criminal complaint prior to the date of incident. That being said, in any case all information recorded road side, transport, or during booking etc is relevant to the litigation as it directly shows the defendants actions, demeanor, clothing if applicable to identity, etc.” 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. 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). I further decline to opine on the applicability of Exemption (f) of the Public Records Law to the requested records. It should be noted that a change in the status of this action could impact the applicability of 950 C.M.R. 32.08(2)(b).

Gillian Halkett SPR23/0217 Page 3 February 21, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Andrew Quemere