Andrew Quemere v. Northwestern District Attorney's Office (SPR 20230555)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 6, 2023 SPR23/0555 Cynthia Von Flatern, Esq. Assistant District Attorney Records Access Officer Northwestern District Attorney’s Office One Gleason Plaza Northampton, MA 01060 Dear Attorney Von Flatern: I have received the petition of Andrew Quemere appealing the response of the Northwestern District Attorney’s Office (Office) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 3, 2023, Mr. Quemere requested the following records relating to a specific defendant: [1] All reports related to the arrest that occurred on or about November 27, 2022; [2] All body camera videos, dashboard camera videos, and other videos related to the specified arrest; [3] All booking photos/mugshots ... related to the specified arrest; [4] All booking videos ... related to the specified arrest; [5] All photos ... injuries and police officers’ injuries related to the specified arrest; [6] Recordings of any phone calls about alleged vandalism or other crimes/suspicious behavior that led to officers stopping [defendant] on or about November 27, 2022; and [7] All reports about alleged vandalism at the [specified location] that occurred on or about November 27, 2022, including reports about other suspects who were identified or arrested. Previous appeal This request was the subject of a previous appeal. See SPR23/0446 Determination of the Supervisor of Records (March 20, 2023). In my March 20th determination, I closed the appeal after I learned that the Office provided Mr. Quemere with a further response dated March 17, 2023. The Office previously provided responses on March 6, 2023, March 8, 2023 and March 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

Cynthia Von Flatern, Esq. SPR23/0555 Page 2 April 6, 2023 16, 2023. Unsatisfied with the Office’s responses, Mr. Quemere petitioned this office and this appeal, SPR23/0555, 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(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). The Office’s March responses In its March 6, 2023 response, the Office stated that it was in possession of “…report narratives from three police officers, body camera footage, cruiser camera footage and photographs” responsive to the request. The Office claimed Exemption (f) of the Public Records Law to withhold the requested records. In an email dated March 8, 2023, the Office explained the following: I wish to clarify that the case involving [defendant] is an active pending criminal case, in Greenfield District Court, Docket No. 2241CR001400. The docket will show that [defendant] has had a violation of probation hearing on this matter but that the criminal case on the underlying charges is open. The district attorney does not release reports to members of the public in a pending case as it can affect the defendant’s and the Commonwealth’s right to a fair trial. See Mass. R. Prof. Conduct 3.6 (“A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter) and Mass. R. Prof. C. 3.8 (f).

Cynthia Von Flatern, Esq. SPR23/0555 Page 3 April 6, 2023 In a follow up email dated March 16, 2023, the Office informed a staff attorney of the Public Records Division that “…the documents directly relate to pending litigation - specifically pretrial/trial proceedings in a criminal case.” In an email dated March 30, 2023, a representative of the Office confirmed that “... [the records] relate to the ongoing litigation in Greenfield District Court involving Gerald Gould, Docket No. 2241CR01400.” On March 17, 2023, the Office provided Mr. Quemere with redacted police reports responsive to his request. Current appeal In his appeal, Mr. Quemere claims that the Office released police reports related to the incident but refused to release videos and photographs, citing Exemption (f). Mr. Quemere states as follows: However, I have been told by a witness to the proceedings that the videos were played in open court. The office does not dispute this. Given that the videos have already been shown in a public setting by the office, there can be no claim that releasing them would jeopardize an ongoing investigation. In a March 29, 2023 email, the Office explained that it “...learned that the audio of one officer’s body cam footage was played in open court, at a violation of Probation hearing. Since the audio was accessible to the public, I can provide to Mr. Quemere. Other camera footage was not played at the hearing and is exempt under the investigative exemption to the definition of public records. G.L. c. 4, sec. 7, cl. 26(f). The audio will be sent by email today.” In a follow up email dated March 29, 2023, Mr. Quemere asserts, “I have been told by a witness to the proceedings that two videos were played during the hearing you mentioned. Please provide both videos, not just the audio.” In light of the above claim, I find the Office must clarify whether any videos were made accessible to the public during the hearing. Conclusion Accordingly, the Office 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.

Cynthia Von Flatern, Esq. SPR23/0555 Page 4 April 6, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Andrew Quemere