Andrew Quemere v. Beverly, City of - Police Department (SPR 20230541)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 4, 2023 SPR23/0541 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. Previous appeal This request was the subject of a previous appeal. See SPR23/0424 Determination of the Supervisor of Records (March 17, 2023). In my March 17th determination, I found that the Department must provide an estimated date as to when it intends to complete the search and provide the outstanding records. The Department provided a response on March 2, 2023, which included a fee estimate. Unsatisfied with the response, Mr. Quemere petitioned this office and this appeal, SPR23/0541, 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 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 SPR23/0541 Page 2 April 4, 2023 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. Fee estimate – municipalities A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.05) per page may be assessed for a black and white single or double-sided photocopy of a public record. G. L. c. 66, § 10(d)(i). Municipalities may not assess a fee for the first (two) 2 hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested unless the municipality has 20,000 people or less. G. L. c. 66, § 10(d)(iii). Where appropriate, municipalities may include as part of the fee an hourly rate equal to or less than the hourly rate attributed to the lowest paid employee who has the necessary skill required to search for, compile, segregate, redact or reproduce a record requested, but the fee shall not be more than $25 per hour. Id. However, municipalities may charge more than $25 per hour if such rate is approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv). A fee shall not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv). See G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4). The Department’s March 2nd response In its March 2, 2023 response, the Department stated the following: As [the subject of the investigation] retired sometime in the early 2000s, this will require research into old electronic and/or paper files which are not readily accessible and will require some time to access. Internal investigations are involved and sensitive in nature, and as such will require a member of the command staff to search for, compile, segregate, redact, and reproduce in an electronic format accessible to you. If you still desire, one of the staff will process this request immediately at a fee of $25 per hour with an estimate of no more than 16 hours to complete this request. The first two hours will be at no charge per statute, so the estimated maximum cost will be $350.00.

Chief John G. LeLacheur SPR23/0541 Page 3 April 4, 2023 Current appeal In his appeal, Mr. Quemere states the following: I sent a request to the department on February 5. That day, the department stated that it intended to charge a fee and would provide a fee estimate at an unspecified time in the future. Subsequently, the department failed to provide a fee estimate within 10 business days. On March 2, after I filed my appeal in SPR23/0424, the department provided a fee estimate of $350. As I previously stated, this estimate is invalid because of the department’s failure to respond in a timely manner. G. L. c. 66, § 10(e) G. L. c. 66, § 10(e) provides that “[a] records access officer shall not charge a fee for a public record unless the records access officer responded to the requestor within 10 business days under subsection (b).” Where Mr. Quemere submitted a public records request on February 5, 2023, and the Department did not provide a response in compliance with G. L. c. 66, § 10(b) in its February 5th response, I find the Department may not assess a fee for this request. Conclusion Accordingly, the Department is ordered to provide Mr. Quemere with a response to the request, 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