Andrew Quemere v. Billerica, Town of - Police Department (SPR 20230788)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 4, 2023 SPR23/0788 Sergeant John Zarro Sergeant Billerica Police Department 6 Good Street Billerica, MA 01821 Dear Sergeant Zarro: I have received the petition of Andrew Quemere appealing the response of the Billerica Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 21, 2023, Mr. Quemere requested: [1] All police reports related to the incident during which a police officer was exposed to fentanyl and lost consciousness on April 19, 2023[;] [2] All drug tests, toxicology screens, and other medical reports related to the officer who lost consciousness; you may redact the officer’s name and other identifying information so that you can disclose this information without disclosing private medical information[.] On April 24, 2023, the Department responded and stated it was withholding the requested records pursuant to Exemptions (c) and (f) of the Public Records Law. G. L. c. 4, § 7(26)(c), (f). Unsatisfied with the Department’s response, Mr. Quemere petitioned this office and this appeal, SPR23/0788, was opened as a result. While this appeal was pending, the Department provided a supplemental response to this office dated April 26, 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). 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

Sergeant John Zarro SPR23/0788 Page 2 May 4, 2023 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 Department’s April 24th and April 26th Responses In its April 24, 2023 response, the Department asserts: Due to the medical nature of the incident and order to protect the privacy of those involved we would have to deny your request under [Exemption (c)]. The second reason for denying the request would be [Exemption (f).] This case is fresh and is still open and subject to further enforcement and possible extended investigation, any materials or information or disclosure could jeopardize the case and those involved. The level of confidentiality in an open and continued investigation particularly one dealing with illegal narcotics needs to be protected. In its April 26, 2023 supplemental response, the Department states: Although Mr. Quemere suggests that we could remove the name of the officer from the reports to protect the privacy exemption, the fact that we are a small force, it would be reasonable to assume he would be able to identify the officer based on the report thus violating the exemption clause and possibly HIPPA laws. He also requested all medical records, drug tests and toxicology screens. The Police Department is not in possession of these records and if we were we hold this would be a violation of HIPPA and deniable under [Exemption (c).] There is an ongoing criminal case on this matter, as such we will deny the request under [Exemption (f)]. H estates the Lowell Sun has received a copy of the police report from us. That is not a correct statement. There is a press release on the [Department’s] website that gives information on the incident[.] No Duty to Create Records Please be advised, under the Public Records Law a custodian is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d). In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See 32 Op. Att’y Gen. 157, 165 (May 18, 1977). 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). Where the Department has confirmed that it has no responsive records in its possession regarding Request # 2, I find that Mr. Quemere’s appeal regarding the Request # 2 is resolved.

Sergeant John Zarro SPR23/0788 Page 3 May 4, 2023 Exemption (f) Exemption (f) permits the withholding of: investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest. G. L. c. 4, § 7(26)(f). A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 371 Mass. 59, 62 (1976). Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Att’y Gen., 52 Mass. App. Ct. 244, 248 (2001); Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 290 n.18 (1979). Exemption (f) invites a “case-by case consideration” of whether disclosure ‘would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” See Reinstein, 378 Mass. at 289-290. Although the Department states that there is an ongoing criminal case on this matter, it is unclear how the records in their entirety can be withheld under Exemption (f). Consequently, the Department has not demonstrated how disclosure of any portion of the responsive records “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest[,]” as required under Exemption (f). See Reinstein, 378 Mass. at 289-90 (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). The Department must explain how segregable portions cannot be provided. Conclusion Accordingly, the Department 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.

Sergeant John Zarro SPR23/0788 Page 4 May 4, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Andrew Quemere