Andrew Quemere v. Boston, City of - Public Records (SPR 20230677)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 20, 2023 SPR23/0677 Shawn A. Williams, Esq. Director of Public Records Record Access Officer City of Boston One City Hall Square Boston, MA 02201 Dear Attorney Williams: I have received the petition of Andrew Quemere appealing the response of the City of Boston (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 4, 2022, Mr. Quemere requested: [1] All city and police department policies related to the Law Enforcement Automatic Disclosure (LEAD) database maintained by the Suffolk County District Attorney’s Office[;] [2] All policies, procedures, and training records (including, but not limited to, written training records, PowerPoint presentations, videos, etc[.]) related to the disclosure of exculpatory evidence to criminal defendants, including records related to compliance with the 1963 Supreme Court decision in Brady v. Maryland[;] [3] All communications between the city, police department, and Suffolk County District Attorney’s Office about the LEAD database from 2019 to the present[;] [4] All records submitted between 2019 and the present by the city and/or police department to the Suffolk County District Attorney’s Office for inclusion or potential inclusion in the LEAD database[.] Previous Appeal This request was the subject of a previous appeal. See SPR22/2036 Determination of the Supervisor of Records (September 16, 2022). In my September 16th determination, I ordered the City to provide Mr. Quemere with a response. On February 9, 2023, the City responded. Unsatisfied with the City’s response, Mr. Quemere petitioned this office and this appeal, SPR23/0677, was opened as a result. 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

Shawn A. Williams, Esq. SPR23/0677 Page 2 April 20, 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(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. The City’s February 9th Response In its February 9, 2023 response, the City states, “[t]he Boston Police informed me that it has no records responsive to items 1 and 2 above and likely has no records responsive to item 4. With respect to item 3 I am reviewing this portion with the Boston Police and will provide an update as soon as that review is complete.” Current Appeal In his appeal, Mr. Quemere states: The response claims that the city does not possess records responsive to two of the requested categories. The city also claims that it “likely has no records responsive” to another requested category. This is not an acceptable response under the public records law. The city must identify all responsive records. The city also claims that it is still “reviewing” whether it possesses records responsive to another category. This is not an acceptable response under the public records law. The city must identify all responsive records. Please order the city to identify and produce all responsive records. Based on the City’s response, in conjunction with Mr. Quemere’s appeal, it is unclear if the City possesses records responsive to the request. 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). To the extent that records exist, I find the City must provide them in a manner consistent with the Public Records Law or identify an exemption that applies to withhold the records from disclosure. G. L. c. 66, § 10(b). See G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). Additionally, it is unclear what records responsive to the request, if any, are being

Shawn A. Williams, Esq. SPR23/0677 Page 3 April 20, 2023 withheld from disclosure. Under the Public Records Law, the burden shall be upon the records custodian to identify records being withheld and prove with specificity the exemption which applies. G. L. c. 66, § 10 (b)(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 ...”); see also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. Conclusion Accordingly, the City 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 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