Thomas Greve v. Massachusetts State Police (SPR 20170885)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords July 13, 2017 SPR17/885 Siobhan E. Kelly, Esq. Office of the Legal Counsel Department of State Police 470 Worcester Road Framingham, MA 01702 Dear Attorney Kelly: I have received the petition of Thomas Greve appealing the April lOth response of the Department of State Police (Department) to a request for public records. G. L. c. 66 § 1 OA; see also 950 C.M.R. 32.08(1). Specifically, on December 2, 2016, Mr. Greve requested a copy of any records indicating the "type of genetic testing" performed on an un-identified person, nicknamed Lady oft he Dunes, whose body was discovered about a mile east of the Race Point Ranger Station in Provincetown on July 26, 1974. I note that the request for the responsive records was made prior to the new provisions of the Public Records Law that went into effect on January 1, 2017. Therefore, the prior Public Records Law's provisions and regulations apply to this request and appeal. Prior appeal and determination The requested records were the subject of a prior appeal and determination. See SPR17/350 Determination ofthe Supervisor of Records (Supervisor) (March 29, 2017). In my March determination, I found that the Department did not meet its burden of specifically explaining how Exemption (f) applied to withhold the records. I closed the appeal with the Department's intention to provide Mr. Greve with a more detailed response regarding its Exemption (f) claim within ten (10) business days. On April 10th, the Department provided a more detailed response, withholding the records pursuant to Exemptions (a), (c) and (f) of the Public Records Law. Mr. Greve petitioned this office again, and the current appeal was opened. 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, § 10(c) (2016 ed.); 950 C.M.R. 32.08(4) (2016 ed.). "Public records" is broadly defined to include all documentary materials or data, 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

Siobhan E. Kelly, Esq. SPR17/885 Page2 July 13, 2017 regardless of physical form or characteristics, made or received by any officer or employee of any town 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(c) (2016 ed.); 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). Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7 (26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public's right to inspect records under the Public Records Law is restricted. See Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either "shall not be a public record," "shall be kept confidential" or "shall not be subject to the disclosure provision of the Public Records Law." The second category under the exemption includes records deemed exempt under a statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. The Department cites G. L. c. 22E, § 9 as it operates through Exemption (a) of the Public Records Law to withhold the DNA records retained by the Department's Crime Lab (Crime Lab). The records of DNA testing that may have been performed on the unidentified decedent are retained in the State DNA Database. This statute provides: All DNA records collected pursuant to this chapter shall be confidential and shall not be disclosed to any person or agency unless such disclosure shall be authorized by this chapter ... G. L. c. 22E, § 9.

Siobhan E. Kelly, Esq. SPR17/885 Page 3 July 13, 2017 The Department's response states, "you are seeking the type of genetic testing performed on an unidentified woman-this falls squarely under the category of DNA analysis. Pursuant to G. L. c. 22 E, § 9 all DNA records, which include the type of DNA analysis records you are requesting, are exempt from disclosure." Chapter 22E defines DNA records as: "DNA information that is derived from a DNA sample and DNA analysis and is stored in the state DNA database or in COD IS, including all records pertaining to DNA analysis." G. L. c. 22E, § 1. Chapter 22E defines analysis as: "DNA typing tests that generate numerical identification information and are obtained from a DNA sample." G. L. c. 22E, § 1. Accordingly, I find that the Department has not met its burden of specificity in how disclosing simply the "type" of DNA genetic test(s), not the results and conclusions of the analysis of the testing performed, may be withheld under Chapter 22 E as it operates through Exemption (a) of the Public Records Law. Exemption (c) The Department has claimed that the records related to the type(s) of genetic DNA tests performed on the decedent are exemption pursuant to Exemption (c) of the Public Records Law. Exemption (c) applies to: personnel and medical files or information; also any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy G. L. c. 4, § 7(26)(c). Exemption (c) contains two distinct and independent clauses, each requiring its own analysis. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 432-33 (1983). The first clause ofExemption (c) creates a categorical exemption for personnel and medical information that relates to an identifiable individual and is of a "personal nature." Id. at 434. A records custodian may withhold medical information that is of a personal nature and relates to a specifically named individual is exempt from disclosure. Brogan v. School Comm. of Westport, 401 Mass. 306, 308 (1987); Globe Newspaper Co., 388 Mass. at 438. Generally, medical information will always be of a sufficiently personal nature to warrant exemption. Globe

Siobhan E. Kelly, Esq. SPR17/885 Page4 July 13,2017 Newspaper Company, 338 Mass. at 432-34. There is a strong public policy in Massachusetts that favors confidentiality as to medical data about a person's body. Globe Newspaper Co. v. Chief Medical Examiner, 404 Mass. 132, 135 (1987). The Department states that genetic testing without the consent of the person to whom the information pertains is prohibited. You state that the Appeals Court has held that "blood tests in general, and particularly those which reveal genetic markers, are 'medical data about person's body"' See Viriyahiranpaiboon v. Dep't of State Police, 52 Mass. App. Ct. 843, 848-849 (2001). I find that the Department has not met its burden of supporting its claim that the first clause of Exemption (c) will allow the Department to withhold the "type" of DNA testing that may have been performed on the "unidentified deceased woman." The first clause of Exemption (c), regarding medical information, will only apply if the information relates to a specifically named individual. Second clause ofE xemption (c) Analysis under the second clause of Exemption (c) is subjective in nature and requires a balancing of the public's right to know against the relevant privacy interests at stake. Torres v. Attorney Gen., 391 Mass. 1, 9 (1984); Attorney Gen. v. Assistant Comm'r of Real Property Dep't, 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case by case basis. The second clause of Exemption (c) does not protect all data relating to specifically named individuals. Rather, there are factors to consider when assessing the weight of the privacy interest at stake: (1) whether disclosure would result in personal embarrassment to an individual of normal sensibilities; (2) whether the materials sought contain intimate details of a highly personal nature; and (3) whether the same information is available from other sources. See People for the Ethical Treatment of Animals (PETA) v. Dep't of Agric. Res., 477 Mass. 280, 292 (2017). . The types of personal information which the second clause of this exemption is designed to protect includes: marital status, paternity, substance abuse, government assistance, family disputes and reputation. Id. at 292 n. 13; see also Doe v. Registrar of Motor Vehicles, 26 Mass. App. Ct. 415, 427 (1988) (holding that a motor vehicle licensee has a privacy interest in disclosure of his social security number). This clause requires a balancing test which provides that where the public interest in obtaining the requested information substantially outweighs the seriousness of any invasion of privacy, the private interest in preventing disclosure must yield. PETA, 477 Mass. at 291. The public has a recognized interest in knowing whether public servants are carrying out their duties in a law-abiding and efficient manner. Id. at 292. The Department has not met its burden regarding the second clause of Exemption (c), because it did not specifically explain how the privacy clause of Exemption (c) applies to withhold the type of DNA testing employed by the Crime Lab on an unidentified decedent.

Siobhan E. Kelly, Esq. SPR17/885 Page 5 July 13, 2017 Exemption (f) Exemption (f), the "investigatory" exemption, permits 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)(£). Exemption (f) provides a limited protection for those law enforcement activities that require a cloak of confidentiality to succeed. The Supreme Judicial Court has stated that Exemption (f) aims at "the avoidance of premature disclosure ofthe Commonwealth's case prior to trial, the prevention of the disclosure of confidential investigative techniques, procedures, or sources of information, the encouragement of individual citizens to come forward and speak freely with police concerning matters under investigation, and the creation of initiative that police officers might be completely candid in recording their observations, hypotheses and interim conclusions." Bougas v. Chief of Police, 371 Mass. 59, 62 (1976); cited with approval in Reinstein v. Police Commissioner of Boston, 378 Mass. 281,289 (1979). This exemption, however, does not provide a blanket exemption for all investigatory materials. Reinstein, 378 Mass. at 289. Instead, it invites "case-by-case consideration of whether access would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest." Id. at 289-290. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas, 371 Mass. at 62. Initially, in its December 29, 2016 response, the Department claimed Exemption (f) to withhold the requested information on the type of DNA testing performed by the Crime Lab, and I found that the Department did not meet its burden of specifically explaining how Exemption (f) applies to allow the Department to withhold any record that reveals the type of DNA testing. In your April 1oth response you explained that you had conferred with the Department detectives assigned to the Office of the District Attorney for the Cape and Islands, and confirmed that the investigation into the murder of a person who has yet to be identified is still open and on going. The Department explained that the investigation is still open and on-going because it is focused on identifying the subject of crime, as well as locating her assailant. As such, it is the Department's position that releasing any information related to the specific genetic testing performed by the crime lab regarding this murder investigation would detract from effective law enforcement and compromise investigative efforts. Finally, you state that the Department is compelled to conduct a thorough and objective investigation of the events into this incident. Therefore, the Department is withholding the records regarding the type of DNA testing that the Crime Lab may have performed on the decedent pursuant to Exemption (f).

Siobhan E. Kelly, Esq. SPR17/885 Page 6 July 13, 2017 While the Department claims that the responsive information or record concerning the type of DNA tests that might have been performed during this investigation, to date, the Department has not demonstrated how disclosure of the "type" ofDNA testing "would so prejudice the possibility of effective law enforcement." See Reinstein, 378 Mass. at 289-90. The Department's response simply states that disclosure of"the specific genetic testing performed would detract from effective law enforcement and could prejudice or compromise investigative efforts to identify this woman via genetic testing." Mr. Greve did not request any results from the testing, just the "type" of testing performed. It unclear how release of only the "type" of DNA (genetic) testing will compromise further investigative efforts by the Department. Furthermore, the Department has not provided sufficient information pertaining to the active nature of case and the most recent developments in the investigation. See Roman Catholic Bishop v. Travelers Cas. & Sur. Co., 23 Mass. L. Rep. 524 (2008). Therefore, I find that the Department has not met its burden of specificity in claiming Exemption (f) of the Public Records Law. Conclusion As a result of reviewing the Department's responses, I find that the Department has not met its burden of supporting its claims that disclosure of the type of DNA genetic testing performed by the Crime Lab may be withheld pursuant to G. L. c. 22E, § 9, as it operates through Exemption (a); Exemption (c); or Exemption (f) of the Public Records Law. Accordingly, the Department is hereby ordered to provide Mr. Greve with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (1 0) 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. Mr. Greve may appeal the substantive nature of the supplemental response within ninety (90) calendar days. 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Thomas Greve