Shane L. Bester v. Department of State Police Crime Laboratory (SPR 20180212)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords March 2, 2018 SPR18/212 Kerry A. Collins, Esq. Department of State Police - Crime Laboratory 124 Acton Street Maynard, MA 01754 Dear Attorney Collins: I have received the petition of Shane Bester appealing the response of the Department of State Police-Crime Laboratory (Department) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1 ). Mr. Bester requested records regarding his arrest and conviction, specifically: 1. Any ballistic analysis conducted on any evidence at the crime scene on January 8, 2008; 2. Other evidence related to this matter, including interviews of witnesses; and 3. The search warrant affidavit. The Department provided Mr. Bester with records responsive to his request. The Department also informed Mr. Bester that there are no responsive records pertaining to any witness statements or a search warrant affidavit. 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 ofthe request. See G. L. c. 66, § 10(a)(ii). Basis for the appeal The basis of Mr. Bester's petition to the Supervisor of Records (Supervisor) is his dissatisfaction with the Department withholding the names of individuals, other than himself, that the Department may have considered as a suspect in the underlying crime for which Mr. Bester was convicted. As a result, this appeal was opened concerning the "suspect identities." Mr. Bester asks the Supervisor to order the Department to provide him the names of other suspects. 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

Kerry A. Collins, Esq. SPR18/212 Page 2 March 2, 2018 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 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) (written response must "identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the 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). Status of the requester Mr. Bester has requested records pertaining to his conviction and the names of other suspects. The Public Records Law does not distinguish between individuals seeking public records. Mr. Bester should be advised that his involvement in the underlying matter offers him no greater right of access under the Public Records Law than any other person. See G. L. c. 66, § 10(a) (public records are to be provided to "any person"); see also Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Access to a record pursuant to the Public Records Law rests on the content of the record, regardless of the circumstances of the requester. Therefore, Mr. Bester's status as a person seeking records for a post-conviction court process shall have no bearing on the public nature of the records. The Department's January Jlh response In its January 11th response the Department indicates that the identities of other individuals named as suspects were withheld pursuant to the CORI Act, Exemption (a) and Exemption (f). The Department also cites Exemption (c) as applicable to releasing certain documents that contain information that would have an impact on the privacy rights of individuals other than Mr. Bester. It is unclear from reading the Department's response whether the Department has also claimed Exemption (c) to withhold the names/identity of other persons who may have been suspects. 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

Kerry A. Collins, Esq. SPR18/212 Page 3 March 2, 2018 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). The Department has cited the CORI Act as applicable to withhold the identities of other suspects that may have been involved in the underlying crime pursuant to Exemption (a). CORI, which is statutorily exempt from disclosure, is defined as: [A ]ny records and data in any communicable form compiled by a criminal justice agency which concern an identifiable individual and relate to the nature or disposition of a criminal charge, an arrest, a pre-trial proceeding, or other judicial proceedings, sentencing, incarceration, rehabilitation, or release. Such information shall be restricted to that recorded as the result of the initiation of criminal proceedings or any consequent proceedings related thereto. Criminal offender record information shall not include evaluative information, statistical and analytical reports and files in which individuals are not directly or indirectly identifiable, or intelligence information G. L. c. 6, § 167. The Department also cites G. L. c. 6, § 172 which describes the persons or entities who are permitted to access or receive CORI. It should be noted that Mr. Bester was provided with his own CORI. However, the Department did not explain how the CORI Act relates to Mr. Bester's request for the names or identities of individuals who may have also been suspects regarding the underlying crime. Under the Public Records Law, a custodian of a record shall not only cite an exemption but must explain why the exemption applies to the withheld information. G. L. c. 66, § 10(b)(iv). It is unclear whether the requested records were recorded as the result of the initiation of criminal proceedings or any consequent related proceedings. Also, it is uncertain whether the requested records contain evaluative information, which is not exempt as CORI. Consequently, I find that the Department has not met its burden in stating how the CORI Act, as it operates through Exemption (a), allows for the withholding of the names or identities of any other suspects to the crime. Exemption (j) Exemption (f) permits the withholding of:

Kerry A. Collins, Esq. SPR18/212 Page 4 March 2, 2018 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). A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 371 Mass 59, 62 (1976). An investigative agency is not required to demonstrate prejudice to withhold the identities of voluntary witnesses, informants, or complainants. Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 290 n.18 (1979). Exemption (f) invites a "case-by-case consideration" of whether disclosure "would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest." See id. at 289-90. The Department's January 11th response states that the Department redacted the identity of the victim as well as other individuals named either as suspects or witnesses in all the records provided to Mr. Bester. Exemption (f) allows the Department to withhold the identifying information of the victims, voluntary witnesses, informants, or complainants; however, it is unclear how Exemption (f) applies to allow the Department to withhold the identities of persons, other than the requestor, who may have been investigated as suspects, in the underlying crime, by the Department. I find that the Department has not met its burden in demonstrating that the identities of other suspects may be withheld under Exemption (f) as victims, voluntary witnesses, informants, or complainants. Exemption (c) Exemption (c) permits the withholding of: 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

Kerry A. Collins, Esq. SPR18/212 Page 5 March 2, 2018 Department's January 11th response only cites the second clause of Exemption (c) as applicable to this request. 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 bycase basis. This clause 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, 4 77 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. I d. at 292. The Department does not state what records or information are subject to the privacy clause of Exemption (c), or whether the Department is claiming that Mr. Bester cannot be provided with the identities of any suspects other than himself under the privacy clause of Exemption (c). The January 11th response simply states that releasing certain documents that contain certain information will have an impact on the privacy rights of others. In order to claim that the privacy clause allows the Department to withhold certain information, it must show what it is about the information that if disclosed to the public would embarrass a person of normal sensibilities; whether the materials sought and withheld by the Department contain "intimate details of a highly personal nature" and whether the information is available from other sources. See PETA, 477 Mass. at 292. Also, the Department has not applied the balancing test in Exemption (c) which requires that where the public interest in obtaining the requested information, the identities of other

Kerry A. Collins, Esq. SPR18/212 Page 6 March 2, 2018 suspects, substantially outweighs the seriousness of any invasion of privacy; the private interest in preventing disclosure must yield. PETA , 4 77 Mass. at 291. I find that the Department has not met its burden of specifically claiming how the second clause of Exemption (c) applies to withhold a record or information responsive to the request. Obligation oft he Department in responding The Department did not meet its burden in claiming Exemptions (a), (c) and (f) to withhold the responsive names of any suspects other than Mr. Bester regarding the underlying crime in the prosecution and conviction. The Department is advised that 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. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995). It is my understanding that a Public Records Division attorney contacted you regarding this appeal. Order Given that the Department did not meet its burden in claiming an exemption with specificity to withhold these records, accordingly, the Department is ordered to provide Mr. Bester with responsive records, 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 this response to this office at pre@sec.state.ma.us. The Department may request a reconsideration of this matter within 10 business days of the date of this letter. Sincerely, Rebecca S. Murray Supervisor of Records cc: Shane Bester