Andrew Quemere v. Beverly, City of - (SPR 20231238)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 23, 2023 SPR23/1238 Peter O’Connor Fire Chief Beverly Fire Department 15 Hale Street Beverly, MA 01915 Dear Chief O’Connor: I have received the petition of Andrew Quemere appealing the response of the Beverly Fire Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 28, 2023, Mr. Quemere requested the following: All reports, letters, memoranda, photographs, videos, and other records created, received, or maintained by the Beverly Fire Department that relate to the Elliott Chambers rooming house fire, which occurred on July 4, 1984. Following further correspondence, the Department responded on May 15, 2023. Unsatisfied with the Department’s response, Mr. Quemere 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 establishing the applicability of an exemption). To meet the specificity requirement a custodian 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

Peter O’Connor SPR23/1238 Page 2 June 23, 2023 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 Department’s May 15th Response In two emails to Mr. Quemere on May 15, 2023, the Department states the following: As soon as we can get the documents in the format you requested. The documents are all with the State right now. As soon as we get them back and get them properly formatted, we will get them to you. . . . We just spoke with the DA’s office. They suggested you reach out to them. Otherwise, you will have to wait until we get the records back from them to process the request. The Department is advised that G. L. c. 66, § 10(b) provides, in pertinent part, that if the magnitude or difficulty of a request unduly burdens the other responsibilities of the agency or municipality such that the agency or municipality cannot provide records within 10 business days, the agency or municipality must inform the requestor in writing within 10 business days. With respect to the timeframe to produce responsive records, the written response shall: identify a reasonable timeframe in which the agency or municipality shall produce the public records sought; provided, that . . . for a municipality the timeframe shall not exceed 25 business days following the initial receipt of the request for public records; and provided further, that the requestor may voluntarily agree to a response date beyond the timeframes set forth herein. G. L. c. 66, § 10(b)(vi). Where Mr. Quemere submitted his request on March 28, 2023, and the Department has not yet provided responsive records, I find the Department has not met its burden in responding to the request in accordance with G. L. c. 66, § 10(b). Consequently, the Department must provide an estimated date as to when it intends to provide the responsive records. See G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). To the extent possible, the Department must provide responsive records on a rolling basis. Conclusion Accordingly, the Department is ordered to provide Mr. Quemere with a response to his 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

Peter O’Connor SPR23/1238 Page 3 June 23, 2023 office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Andrew Quemere