Dyer, Esq., Susanna v. Department of State Police Crime Laboratory (SPR 20140135)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords May 1, 2014 SPR14/134; SPR14/135 Ms. Jenniffer O'Neil, Esq. Staff Counsel Department of State Police State Police Headquarters 470 Worcester Road Framingham, MA 01702 Dear Attomey O'Neil: I have received a February 27, 2014 petition from Susanna Dyer, Esq. of Ropes and Gray, LLP appealing the response of the Department of State Police (Department) to her August 2, 2013 and August 26, 2013 requests to the Department's Forensic and Technical Center and the Legal Department for public records. See G. L. c. 66, § 10(b); see also 950 C.M.R. 32.08(2) (appeals process). Attorney Dyer requested copies of records related to incidents that occurred in 1984 and 1985 that led to the prosecution of a specifically identified individual. Attorney Dyer indicated to this office and the Department that she represents one of the parties. The Department informed this office that any requests sent to the Forensic and Technical Center would be forwarded to the Department's Office of the General Counsel for a response; therefore, I have combined both appeals into this determination. Timeliness of Response to Public Records Requests Attorney Dyer informed this office that she made her requests to the Department in August 2013, received a response via telephone, but did not receive a written response until November 7, 2013. The Department is reminded that a custodian has a duty to comply with a public records request as soon as is practicable, without unreasonable delay, and always within ten (10) calendar days. G. L. c. 66, § 10(a); 950 C.M.R. 32.05(2). The ten-day provision is a maximum, rather than a minimum time frame for complying with a public records request. Boston Globe Newspaper Company v. Commissioner of Education, 439 Mass. 124 (2003). OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832. Fax (617) 727-5914 www.sec.state.ma. us/pre

Ms. Jenniffer O'Neil, Esq. SPR14/134; SPR14/135 Page Two May 1, 2014 Within ten (1 0) days of receipt of a public records request, the custodian of records must use his superior knowledge of the records to identifY those records that are responsive to the request, conduct a quick search if necessary in order to identify responsive records, and send a detailed, written response. By letter dated November 7, 2013, you informed Attorney Dyer and this office that the Department conducted a diligent search of both its electronic and paper records, and has no records responsive to Attorney Dyer's requests regarding her client or a second person identified in Attorney Dyer's request. During a March 28, 2014 telephone discussion with a member of my legal staff, you explained that you also contacted the Hampden County State Police Detective Unit housed at the Office of the Hampden County District Attorney (District Attorney) for any responsive records regarding Attorney Dyer's client. You were informed by the Department's Detective Unit that they did not conduct the investigations regarding her client. A record holder's duty to comply with requests for information extends only to those records which exist and are in his custody. See G. L. c. 4, § 7 (26). There is no obligation to create a record in response to a public records request. G. L. c. 66, § 10(a); 32 Op. Att'y Gen. 157, 165. Exemption (f) In your letter and during your discussion with a member of my legal staff, you explained that the District Attorney is currently involved in an investigation and criminal prosecution of the second named person identified in your written response to Attorney Dyer, that those records are in the custody of the District Attorney and are exempt pursuant to Exemption (f) of the Public Records Law. Exemption (f) provides for the withholding of: investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest G. L. c. 4, § 7(26)(f) Exemption (f) allows investigative officials to withhold materials that compromise investigative efforts if disclosed. There is no blanket exemption, however, for records created or maintained by investigative officials. District Attorney for the Norfolk District v. Flatley, 419 Mass. 507, 512 (1995); WBZ-TV4 v. District Attorney for the Suffolk District, 408 Mass. 595, 603 (1990).

Ms. Jenniffer O'Neil, Esq. SPR14/134; SPR14/135 Page Three May 1, 2014 I find that, based upon the Department's explanation, any responsive records related to Attorney Dyer's client or the second named person are related to an ongoing investigation by the District Attorney and are therefore exempt at this time pursuant to Exemption (f) of the Public Records Law. Accordingly, both of Attorney Dyer's administrative appeals are closed. Request for Criminal Offender Record Information; Status ofA ttorney Dyer's Client In her appeal to this office Attorney Dyer indicated that her client would be willing to submit authorization to gain access to any Criminal Offender Record Information (CORI) held by the Department; however, the Public Records Law is not the proper avenue to gain access to one's own CORI. The personal status of Attorney Dyer's client does not afford any greater right of access to the requested information, as the Public Records Law does not distinguish between requesters. Access to a record requested pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requester. See Bougas v. Chief ofPolice of Lexington, 371 Mass. 59, 64 (1976). The judicial discovery process and the Public Records Law are two distinct and independent avenues for gaining access to records. The Massachusetts Supreme Judicial Court has held that material exempt from disclosure under the Public Records Law may be available to certain parties through discovery. Commonwealth v. Wanis, 426 Mass. 639 (1998) (material exempted from disclosure pursuant to the Public Records Law is not automatically privileged from discovery if a criminal defendant moves for its production). As the records she seeks are exempt from disclosure under the Public Records Law, it may be preferable for Attorney Dyer to attempt to gain access the responsive records through the judicial process. Shawn A Williams Supervisor of Records cc: Ms. Susanna G. Dyer, Esq.