Andrew Quemere v. Massachusetts State Police (SPR 20230557)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 5, 2023 SPR23/0557 Allison Mondello Records Access Officer Massachusetts Department of State Police 470 Worcester Road Framingham, MA 01702 Dear Ms. Mondello: I have received the petition of Andrew Quemere appealing the response of the Department of State Police (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 11, 2023, Mr. Quemere requested the following: [1] All records related to internal affairs investigations of [a named State Trooper], who retired in 2003 [2] All records related to commendations received by the above-named individual [3] The retirement letter submitted by the above-named individual and any responses provided by members of the department[.] Previous Appeal This request was the subject of a previous appeal. See SPR23/0445 Determination of the Supervisor of Records (March 20, 2023). In my March 20th determination, I ordered the Department to provide Mr. Quemere with a response to his request. Subsequently, the Department responded on March 21, 2023, providing responsive records. Unsatisfied with the Department’s response, and contending that the Department possesses additional responsive records, Mr. Quemere appealed, and this case 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 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

Allison Mondello SPR23/0557 Page 2 April 5, 2023 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. Att’y 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. Current Appeal In a March 21, 2023 email to the Department, provided with his appeal petition Mr. Quemere also states the following: There is one record related to an apparent internal affairs case ... but all of the other records, including the complaint, are missing and this case is not in the Concise Member History. Were the internal affairs records related to [a named individual] destroyed? In his appeal petition, Mr. Quemere contends that the Department possesses additional records responsive to his request, and argues the following: [T]he PDF containing the commendations has a letter from the detective written in response to a complaint.... No other records related to this investigation were provided, such as the complaint, investigatory reports, the disposition, etc. The department has not said that any records related to this detective were destroyed, so it is unclear why it does not possess the other records related to this investigation or the records for any other internal affairs investigations related to this detective. Specifically, in his appeal petition and the email noted above, Mr. Quemere refers to a letter with the subject line “News Conference Attended by [a named State Trooper] on Saturday, July 20, 1991 and the Reason for Not Wearing a Tie.” The Department March 21st and March 23rd Responses In its March 21, 2023 response, the Department provides numerous records responsive to Mr. Quemere’s request, and in an email to Mr. Quemere on March 23, 2023, the Department confirms that “a diligent search was conducted for all records pertinent to [the] request.” Please be advised that the duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). Further, in accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to

Allison Mondello SPR23/0557 Page 3 April 5, 2023 assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). However, under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). In a telephone conversation with this office on April 5, 2023, the Department confirmed, based on a search of its records and a review of the Concise Member History for the named State Trooper, that it does not possess any additional records responsive to the request. Conclusion Where the Department has confirmed that it does not possess additional records, and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. Sincerely, Manza Arthur Supervisor of Records cc: Andrew Quemere