Andrew Quemere v. Egremont, Town of - Town Clerk (SPR 20230802)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 9, 2023 SPR23/0802 Juliette Haas Town Clerk Town of Egremont 171 Egremont Plain Road 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 March 6, 2023, Mr. Quemere requested the following records for a named person: [1] All internal affairs records for [an identified individual] [2] All records discussed at any disciplinary hearings for [an identified individual] [3] All letters, emails, and other communications informing [an identified individual] of a disciplinary hearing and all responses from [an identified individual] [4] All letters, emails, and other communications informing [an identified individual] of the outcome of a disciplinary hearing and all responses from [an identified individual] [5] All letters, emails, and other communications informing [an identified individual] of a change to his employment status and all responses from [an identified individual] [6] All letters, emails, and other communications by [an identified individual] informing the [T]own of his resignation [7] All severance agreements with [an identified individual]. 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 ordered the Town to provide Mr. Quemere with a response to the request, which would address the status of the investigation and provide additional information regarding the applicability of Exemption (c) to withhold the 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 SPR23/0802 Page 2 May 9, 2023 responsive records. On April 25, 2023, the Town responded. Unsatisfied with the Town’s response, Mr. Quemere petitioned this office and this appeal, SPR23/0802, 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(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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Town’s April 25th Response In its April 25, 2023 response, the Town states: [Mr. Quemere] continues to contact my client regarding a matter that involves active litigation, and more particularly, 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. In this regard, the town remains in an executive session with regard to [an identified individual’s] discipline. Pursuant to 950 CMR 32.08(2), the records requested are the subject of active litigation. Current Appeal In his appeal, Mr. Quemere argues: In part, my request asked for the internal affairs records related to a specific

Juliette Haas SPR23/0802 Page 3 May 9, 2023 police officer. The town responded that it previously provided the records for this officer months ago in response to a different public records request. The town’s response does not make it clear if there are any additional documented internal affairs investigations that have occurred since the town fulfilled that request. The town must identify any responsive records that it did not previously provide and either disclose them or explain its basis for withholding them. In response to other items I requested, the town has simply stated that they “involve[] active litigation, and more particularly, an arbitration that is required by the officer in question’s collective bargaining agreement.” The town does not cite any exemptions to the public records law that would allow it to withhold the records. Instead, it cites a regulation that gives you the discretion—but doesn’t require you—to reject an appeal for records involved in active litigation. This regulation is not a basis for withholding records. The town is still required to identify all responsive records that it is withholding, cite exemptions to the public records law, and explain with specificity how those exemptions apply to the requested records. Furthermore, a collective bargaining agreement cannot abrogate the town’s obligation to comply with the public records law. Based on the Town’s response, in conjunction with Mr. Quemere’s appeal, it is unclear if any additional records responsive to the request are being 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. 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. Sincerely, Manza Arthur Supervisor of Records cc: Andrew Quemere