Andrew Quemere v. Beverly, City of - Police Department (SPR 20230424)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 17, 2023 SPR23/0424 Chief John G. LeLacheur Beverly Police Department 175 Elliott Street Beverly, MA 01915 Dear Chief LeLacheur: I have received the petition of Andrew Quemere appealing the response of the Beverly Police Department (Department) to a request for public records. G. L. c. 66 § 10A; see also 950 C.M.R. 32.08(1). On February 5, 2023, Mr. Quemere requested “[a]ll records related to internal affairs investigations…” of a retired detective. The Department provided a response on February 5, 2023. Unsatisfied with the response, Mr. Quemere petitioned this office and this appeal, SPR23/0424, 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 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. 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

Chief John G. LeLacheur SPR23/0424 Page 2 March 17, 2023 The Department’s February 5th response On February 5, 2023, the Department stated that “[w]here [the detective] retired many years ago, this will require hand searching and copying. There will be a cost involved and we will present an invoice prior to our beginning the work.” Current appeal In his current appeal, Mr. Quemere states that “I made a records request to the Beverly Police Department more than 10 business days ago. The department stated that it intended to produce a fee estimate but then provided no further information.” G. L. c. 66, § 10(b) provides, in pertinent part, that if the magnitude or difficulty of the request unduly burdens the other responsibilities of the agency or municipality such that the agency or municipality cannot provide records within 10 business days, the agency or municipality must inform the requestor in writing within 10 business days. With respect to the timeframe to produce responsive records, the written response shall: identify a reasonable timeframe in which the agency or municipality shall produce the public records sought; provided, that for an agency, the timeframe shall not exceed 15 business days following the initial receipt of the request for public records and for a municipality the timeframe shall not exceed 25 business days following the initial receipt of the request for public records; and provided further, that the requestor may voluntarily agree to a response date beyond the timeframes set forth herein. G. L. c. 66, § 10(b)(vi). Whereas Mr. Quemere’s request was submitted on February 5, 2023, and the Department has not provided responsive records pertaining to the request, I find the Department has not met its burden in responding to the request in accordance with G. L. c. 66, § 10(b)(vi). Consequently, I find the Department must provide an estimated date as to when it intends to complete the search and provide the outstanding records. See G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). To the extent possible, the Department must provide responsive records on a rolling basis. 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 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. Mr. Quemere may appeal the substantive nature of the Department’s response within 90 calendar days. See 950 C.M.R. 32.08(1).

Chief John G. LeLacheur SPR23/0424 Page 3 March 17, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Andrew Quemere