Andrew Quemere v. Egremont, Town of - Town Clerk (SPR 20230800)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 9, 2023 SPR23/0800 Juliette Haas Town of Egremont Town Clerk PO Box 368 South Egremont, MA 01258 Dear Ms. Haas: I have received the petition of Andrew Quemere appealing the response of the Town of Egremont (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 4, 2023, Mr. Quemere requested, “… all demand letters, complaints, other correspondence between the parties, and briefs/filings related to this litigation” regarding a named person. Prior Appeals The requested records were the subject of prior appeals. See SPR23/0583 Determination of the Supervisor of Records (March 31, 2023) and SPR23/0626 Determination of the Supervisor of Records (April 14, 2023). In my April 14th determination, I closed the appeal after the Town indicated it would provide Mr. Quemere with a further response. The Town responded on April 24, 2023. Unsatisfied with the response, Mr. Quemere petitioned this office and this appeal, SPR23/0800, 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 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

Juliette Haas SPR23/0800 Page 2 May 9, 2023 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 Town’s April 24th Response In its April 24, 2023 response, the Town asserted that the requested records are related to “...an arbitration that is required by the officer in question's collective bargaining agreement. In this regard, Mr. Quemere has already been advised that there is pending litigation, as is reflected in an article that he recently published. Notwithstanding Mr. Quemere's claims that the town has not responded to his requests, I have advised him to stop contacting my client due to active litigation. I have instructed my client to provide him with nothing further than what has already been provided.” The Town’s May 8th Response In its May 8, 2023 response, the Town advised there is pending litigation as follows: Kipp M. Wiggins v Officer Matthew O’Sullivan, The Egremont Police Department, et al. Berkshire Superior Court Civil Action No. 2276CV00159. Based on the Town’s response, it is unclear if the requested records relate to the Berkshire Superior Court case. It is also uncertain how an arbitration is grounds for withholding the requested records. 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. Consequently, I find the Town did not meet its burden of specificity to in responding to the records request. Conclusion Accordingly, the Town 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 (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.

Juliette Haas SPR23/0800 Page 3 May 9, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Andrew Quemere