Andrew Quemere v. Massachusetts Peace Officer Standards and Training Commission (SPR 20232366)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 20, 2023 SPR23/2366 Kerri L. Johnson Records Officer Peace Officer Standards and Training Commission 100 Cambridge Street Boston, MA 02114 Dear Ms. Johnson: I have received the petition of Andrew Quemere appealing the response of the Peace Officer Standards and Training Commission (Commission) to his request for public records. See G. L. c. 66, §10A; see also 950 C.M.R. 32.08(1). On March 24, 2023, Mr. Quemere requested, “[a]ll spreadsheets submitted by law-enforcement agencies to the POST Commission for inclusion in the commission’s disciplinary record database.” Prior Appeal and Reconsideration This request was the subject of a prior appeal and subsequent reconsideration. See SPR23/0830 Determinations of the Supervisor of Records (May 11, 2023 and August 10, 2023). In my August 10th determination, I found that based on a July 17, 2023 letter from the Commission, new information has come to light in which requested spreadsheets are not related to the pending litigation. The Commission responded on August 24, 2023. Unsatisfied with the response, Mr. Quemere petitioned this office and this appeal, SPR23/2366, 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) (written response must “identify any 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

Kerri L. Johnson SPR23/2366 Page 2 October 20, 2023 records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such 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 Commission’s August 24th Response In its August 24, 2023 response, the Commission asserted, “[t]he SPR’s regulations provide that an agency recordholder ‘shall, when appropriate, suggest a reasonable modification of the scope of the request or offer to assist the requester to modify the scope of the request if doing so would enable the agency or municipality to produce records sought more efficiently and affordably.’ 950 CMR 32.06 (treating such a suggestion or offer within a subsection that is separate from the subsection that governs ‘denial of access’ and lists the requirements for a ‘written notice of denial’).” The Commission further asserted, “[i]n accordance with the regulatory requirements above, the Commission ‘suggest[s] a reasonable modification of the scope of the request’ that ‘would enable the [Commission] to produce records sought more efficiently and affordably,’ for your consideration. 950 CMR 32.06. The Commission is making an extensive database of law enforcement disciplinary information available in three forms: a report arranged by officers’ last names, a report arranged by agency, and a spreadsheet containing the underlying data. The information is described and available here: https://www.mass.gov/info-details/officer- disciplinary-records-database. The Commission requests that you review this information and agree to accept it as a satisfactory production of records in response to your request.” Current appeal In his appeal, Mr. Quemere stated, “I declined to narrow my request and asked the commission to provide the responsive documents. Although more than a month has passed, the commission has not provided any responsive documents, provided a production schedule, or otherwise responded.” 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). However, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). To the extent that the requested records exist, I find the Commission must provide them in a manner consistent with the Public Records Law or identify an exemption that applies to withhold the records from disclosure. G. L. c. 66, § 10(b). See G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). To the extent possible, the Commission must provide responsive records on a rolling basis.

Kerri L. Johnson SPR23/2366 Page 3 October 20, 2023 Conclusion Accordingly, the Commission 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 (10) business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. Mr. Quemere may appeal the substantive nature of the Commission’s response within 90 days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Andrew Quemere