Thomas Greve v. Office of the District Attorney - Essex District (SPR 20171713)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords December 20, 2017 SPR17/1713 David F. O'Sullivan, Esq. Office of the District Attorney - Essex District Ten Federal Street Salem, MA 01970 Dear Attorney O'Sullivan: I have received the petition of Thomas Greve appealing the response of the Office of the District Attorney Essex District (DAO) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Greve requested a copy of: records related to genetic testing performed on an unidentified white male homicide victim, approximately 13-17 years of age, whose body was discovered on November 28, 1992 in a wooded area off Interstate Route 95 in Newburyport, Essex County, Massachusetts. The DAO provided a response dated December 7, 2017, in which it denied access to a record pursuant to Exemption (a) of the Public Records Law and G. L. c. 22E, § 12. Unsatisfied with the DAO's response, Mr. Greve petitioned this office. As a result, this appeal, SPRl 7/1713, 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, § lOA(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 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, § lO(b)(iv); 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). 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. 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

David F. O'Sullivan, Esq. SPRl 7/1713 Page2 December 20, 2017 th The DAO's December response ih In its December response, the DAO indicates, "[w]e have not yet been able to ascertain whether we have responsive records at this Office." While, the DAO has yet to identify any records, the DAO informed Mr. Greve that "any such records would be protected from public release." The DAO cites G. L. c. 22E, § 12 as it operates through Exemption (a) of the Public Records Law as applicable to withhold any records responsive to the request. Given that Mr. Greve's request was dated October 1st, it is unclear whether the DAO's ih December response was provided in a timely manner. Under the Public Records Law and the Access Regulations (Regulations) all requests for public records must be met with a response within ten business days ofreceipt of the request. G. L. c. 66, § lO(a)-(b ). "If applicable, a · records access officer (RAO) shall provide a written response under M.G. L. c. 66, § lO(b) to a request for records no later than the tenth business day following receipt of a request notwithstanding the applicability of any petition filed pursuant to 950 C.M.R. 32.06(4)." 950 C.M.R. 32.06 (2)(b) . Such response may contain, among other things, an offer to provide records, a fee estimate for provision of the records, or a denial. G. L. c. 66, § lO(b). All records custodians must comply with both the Public Records Law and the Regulations with respect to the timeliness of response. If the DAO cannot demonstrate it provided a timely response, the DAO may not charge a fee for any records that the DAO provides that are responsive to Mr. Greve's October 1st public records request. "A RAO shall not charge a fee for the provision of a public record unless the RAO responded to the requester within ten business days under M.G. L. c 66, § 1O (b )." See 950 C.M.R. 32.06(2)(c ). ih Furthermore, the DAO's December response did not contain the specificity required in identifying any records responsive to the request when denying access to a public record. The DAO has claimed that Exemption (a) applies to withhold any records; however, it is unclear what record(s) the DAO is withholding. To deny access to a record under the Public Records Law, a records access officer (RAO), must identify the record, categories ofrecords, or portions of the record it intends to withhold. G. L. c. 66, §lO(b)(iv); 950 CMR 32.06(3)(c)(4). Here, the DAO withheld records without identifying any records. Therefore, the DAO must identify the type ofrecord(s) it has in its possession. 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).

David F. O'Sullivan, Esq. SPRl 7/1713 Page 3 December 20, 2017 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 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. G. L. C. 22E, § 12 The DAO cites G. L. c. 22E, § 12 as a statute applicable to allow the DAO to withhold records under Exemption (a) of the Public Records Law. This statute states in pertinent part: Any person who, by virtue of employment or official position, has possession of, or access to, a DNA sample or record or portion thereof contained in the state DNA database and who purposely discloses such record or portion thereof in any manner to any person or agency not authorized to receive such record or portion thereof in any manner to any person not authorized to receive such record or portion thereof shall be subject to punishment by a fine of not more than $1,000 or imprisonment in a jail or house of correction for not more than six months or both. G. L. C. 22E, § 12. It is my understanding that Mr. Greve seeks records that reveal the types of DNA testing performed, not the actual sample or record of the results of the DNA testing. Therefore, it is unclear how this particular statute applies to withhold the records concerning the type of DNA testing that may have been performed on the decedent. I find that the DAO did not meet its burden of specificity in identifying what records the DAO has custody of that are responsive to Mr. Greve's request; nor did the DAO specifically explain how the cited exemption and statute allow the DAO to withhold, in their entirety, any records responsive to the request. Under the Public Records Law, any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, §lO(a). See Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not

David F. O'Sullivan, Esq. SPRI 7/1713 Page 4 December 20, 2017 blanket in nature). The DAO also has a duty to segregate those portions of a record that are specifically exempt from disclosure, and provide the balance of the record. G. L. c. 66, § lO(a). Conclusion It is my understanding that a Public Records Division attorney contacted you regardmg this administrative appeal. Accordingly, the DAO is ordered to provide Mr. Greve with a response to the request 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 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 Department's response within ninety calendar days. See 950 C.M.R. 32.08(1). Sincerely, ~ u r r ~ Supervisor of Records cc: Thomas Greve