Andrew Quemere v. Beverly, City of - Police Department (SPR 20230687)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 21, 2023 SPR23/0687 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. See 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 appeals This request was the subject of previous appeals. See SPR23/0424 Determination of the Supervisor of Records (March 17, 2023) and SPR23/0541 Determination of the Supervisor of Records (April 4, 2023). In my April 4th determination, I found that where the Department’s February 5th response was not in compliance with G. L. c. 66, § 10(b), it may not assess a fee for this request. The Department provided a response on April 6, 2023. Unsatisfied with the response, Mr. Quemere petitioned this office and this appeal, SPR23/0687, 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 town 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 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 SPR23/0687 Page 2 April 21, 2023 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 Department’s April 6th response In its April 6th response, the Department stated, “[w]e have found no evidence of any internal affairs investigations involving retired [named] Detective.” Current appeal In his appeal, Mr. Quemere asserted, “... the department responded that it “found no evidence of any internal affairs investigations involving” the retired detective. The department provided no additional information. This response is illogical. If responsive records existed on March 17, when the department most recently attempted to charge the $350 fee, then there is no reason the records should not still exist.” Mr. Quemere also stated, “[t]he department must explain why it failed to preserve the responsive documents that it knew were subject to disclosure. If the records still exist, the department must identify and produce them.” In a further response also dated April 6, 2023, the Department responded to Mr. Quemere’s inquiry and explained that it had “... never began a search because [Mr. Quemere] never approved our fee estimate. When directed by the State to complete the inquiry, we were unable to find any evidence of any internal affairs investigations involving [named] Detective.” No Duty to Create Records Please be advised, under the Public Records Law the Department is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d). 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). Conclusion Where the Department does not possess any records responsive to Mr. Quemere’s request 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