Andrew Quemere v. Greenfield, City of - Police Department (SPR 20230831)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 10, 2023 SPR23/0831 Robert H. Haigh Jr. Records Access Officer Chief of Police Greenfield Police Department 321 High Street Greenfield, MA 01301 Dear Chief Haigh: I have received the petition of Andrew Quemere appealing the response of the Greenfield Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 21, 2023, Mr. Quemere requested “all reports and videos related to use-of-force incidents” involving a specific officer. Previous Appeal This request was the subject of a previous appeal. See SPR23/0580 Determination of the Supervisor of Records (April 7, 2023) and SPR23/0693 Determination of the Supervisor of Records (April 24, 2023). In my April 24th determination, I ordered the Department to clarify its claims under Exemption (f) for withholding responsive records. Unsatisfied with the Department’s response, Mr. Quemere further appealed, and this case 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. Att’y for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of 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

Robert H. Haigh Jr. SPR23/0831 Page 2 May 10, 2023 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 Responses In its previous April 6, 2023 response, the Department identified three reports that it intends to withhold. The Department cites Exemption (f) of the Public Records Law for withholding the reports, and states that the reports are the subjects of disputes in active litigation. See G. L. c. 4, § 7(26)(f). In its April 6th response, the Department states the following: [T]he additional information sought in [the] request are ... reports 22-108-IA (22- 327-AR – Docket 2241CR1515), 23-1-IA (23-2-AR – Docket 2341CR0007) and 23-2-IA (22-290-AR – Docket 2241CR1320), all of which are being denied at this time in accordance with Exemption F – The Investigatory Exemption of G.L. Chapter 4, §7(26)(f). These reports and supporting documentation are currently open criminal matters and are the subject of disputes in active litigation, administrative hearings or mediation. In its April 27th response, the Department further argues that “all video, reports, photos etc have been provided to the District Attorney’s office as evidence to assist in further prosecution of the alleged crimes involved. Releasing such records/video may not only prejudice the Commonwealths case but also the defense, especially in their ability to pick a fair and impartial jury.” The Department goes on to argue that “all information recorded road side, transport, or during booking etc is relevant to the litigation as it directly shows the defendants actions, demeanor, clothing if applicable to identity.” Pending Litigation 950 C.M.R. 32.08(2)(b) provides in pertinent part: the Supervisor may deny an appeal for, among other reasons if, in the opinion of the Supervisor: 1. the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation. In light of the pending litigation, I decline to opine on this matter at this time. See 950 C.M.R. 32.08(2)(b). It should be noted that a change in the status of this action could impact the applicability of 950 C.M.R. 32.08(2)(b).

Robert H. Haigh Jr. SPR23/0831 Page 3 May 10, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Andrew Quemere