Allen Scoggins v. Department of State Police Crime Laboratory (SPR 20180369)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 4, 2018 SPR18/369 Kerry A. Collins, Esq. Department of State Police Crime Laboratory 470 Worcester Road Framingham, MA 01702-5351 Dear Attorney Collins: I have received the petition of Allen Scoggins appealing the response of the Department of State Police Crime Lab (Department) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, on February 8, 2018, Mr. Scoggins requested "files and lab work analyzed by MSP Lab [and] [a]ny interviews of witnesses or other suspect information," relating to a homicide that occurred on May 16, 1997. In a response dated February 27, 2018, the Department provided portions of the responsive records in redacted form and denied access to other records pursuant to Exemptions (a), (c), and (f) of the Public Records Law. G. L. c. 4, § 7(26)(a), (c), (f). Unsatisfied with the Department's response, Mr. Scoggins petitioned this office and this appeal, SPRl 8/3 69, was opened as a result. Purpose of request; identity of requester Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requester. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Mr. Scoggins' purpose in making the request has no bearing on the public status of any existing responsive records. It should be noted that the 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 while a party's access to records may be limited by the Public Records Law, this may not preclude obtaining the records through discovery. Commonwealth v. Wanis, 426 Mass. 639 (1998). See also 950 C.M.R. 32.0S(l)(a) (the administrative appeal process "shall not apply to records in which an individual, or a representative of the individual, has a unique right of access to the record through statutory, regulatory, judicial or other applicable means"). As 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. SPR18/369 Page 2 April 4, 2018 such, Mr. Scoggins may wish to consider another means of seeking to obtain any existing responsive records. 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, § 1 OA( 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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1O (b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Department's February 2111 response In its February 27, 2018 response, the Department indicated that it "has withheld entirely various records and photographs and has redacted the identity of other individuals named either as suspects or witnesses in all files, the victim's identification, and fingerprints of other individuals ..." pursuant to Exemptions (a), (c), and (f). The Department provided a list of 17 categories of records it withheld or redacted. Exemption (a) The Department claimed it withheld or redacted responsive records under the Criminal Offender Records Information (CORI) Act and its Regulations, as they operate through Exemption (a) of the Public Records Law. 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

Kerry A. Collins, Esq. SPR18/369 Page 3 April 4, 2018 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. Under its Exemption (a) claim, the Department indicates that it withheld the following records: scene photos; fingerprints; autopsy photos; victim fingerprints; fingerprint photos; case jacket; victim ID; suspect/witness; fingerprints of suspect/witness; evidence return; and victim/witness ID. The Department asserts that disclosing these records would violate the CORI statute, becc).use the statute only permits the dissemination of CORI information to specific agencies and individuals. The Department cites various clauses of the CORI statute and these cases, Bellin v. Kelley, 48 Mass. App. Ct. 573, 576-577 (2000) and Commonwealth v. Vickey, 381 Mass. 762, 765 (1980), in support of its decision to withhold responsive records under the CORI Act. The Department has cited the CORI Act and its Regulations as applicable to withhold responsive records 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. CORI Inclusions and Exclusions CORI shall include fingerprints, photographs, and other identifying data that is

Kerry A. Collins, Esq. SPR18/369 Page 4 April 4, 2018 recorded as the result of the initiation of a criminal proceeding. 803 C.M.R. 2.03(3). Exemption (c) The Department indicated that it withheld or redacted responsive records pursuant to Exemption (c ) of the Public Records Law. 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). Second clause ofE xemption (c) Exemption ( c) contains two distinct and independent clauses, each requiring its own analysis. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 432-34 (1983). Only the second clause of Exemption ( c) is applicable to this determination. 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. 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, 477 Mass. at 291. The

Kerry A. Collins, Esq. . SPR18/369 Page 5 April 4, 2018 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. Under its Exemption (c ) claim, the Department indicates that it withheld the above mentioned records, and additionally: crime scene photos; evidence recovery log; crime scene diagram/sketch; homicide checklist; ME toxicology intake; serology card; evidence return receipt; Lab No. C7-491 report; Lab No. C7-491 handwritten report; and two requests for examination from disclosure. The Department indicates that "[t]he privacy clause is subjective in nature and requires a balancing of the public's right to know against the relevant privacy interests at stake. Moreover, the exemption will apply only where the privacy interest of the record subject outweighs the public interest in disclosure. Attorney General v. Collector of Lynn, 377 Mass. 151, 156 (1979)." The Department asserts that "releasing certain documents that contains victim or witness identification information will have an impact of the privacy rights of others." Exemption (f) The Department claimed it withheld responsive records pursuant to Exemption (f) of the Public Records Law. Exemption (f) 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)(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). Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Attorney Gen., 52 Mass. App. Ct. 244,248 (2001); 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 Reinstein, 378 Mass. at 289-90. Under its Exemption (f) claim, the Department indicates that it withheld the following records: scene photos; fingerprint photos; case jacket; victim ID; fingerprints of suspect/witness; and evidence return 9.18.07. The Department indicates that" ... [t]he policy considerations

Kerry A. Collins, Esq. SPR18/369 Page 6 April 4, 2018 underlying the exemption are well settled. See, [Bougas, 371 Mass. at 62] ('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')." Burden of specificity Pursuant to the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. G. L. c. 66, § 1O (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 ... "); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. With respect to the Department's Exemption (a) claim, whereas the cited CORI Regulation permits non-disclosure of fingerprints and photographs, I find that the Department may permissibly withhold such records from public disclosure so long as the fingerprints and photographs were recorded "as the result of the initiation of a criminal proceeding." G. L. c. 6, § 167; 803 C.M.R. 2.03(3). It should be noted that this office has previously found that the initiation of criminal proceedings begins at the signing of the criminal complaint. See SPR06/191 Determination of the Supervisor of Records (October 10, 2006); SPRl0/152 Determination of the Supervisor of Records (August 27, 2010). With respect to Exemption ( c ), I find the Department has not provided enough specificity in its response to withhold responsive records under the second clause of Exemption ( c ). Although the Department asserts that "releasing certain documents that contains victim or witness identification information will have an impact of the privacy rights of others," considering the PETA analysis, the Department has not demonstrated how the "victim or witness identification information" constitutes intimate details of a highly personal nature. Neither has the Department demonstrated how disclosure would result in personal embarrassment to an individual of normal sensibilities nor has it addressed the availability of such information from other sources. Also, while the Department recognizes that the second clause of Exemption (c) requires a balancing test, the Department does not provide information that lends support to its position that the privacy right of the "record subject" outweighs the public interest in disclosure of the requested records. Likewise, I find the Department has not met its burden of providing enough detail in its response to withhold responsive records under Exemption (f). While the Department claims it withheld or redacted responsive records pursuant to Exemption (f), it does not explain the subject of the investigation nor does it describe how the requested records are part of the investigation. Further, although the Department references the Bougas decision, which found that the purpose of Exemption (f) is to prevent the disclosure of confidential investigative techniques, the Department did not provide supporting information concerning any confidential investigative

Kerry A. Collins, Esq. SPR18/369 Page 7 April 4, 2018 techniques unique to this investigation. Additionally, the Department has not demonstrated how disclosure of any segregable portion "would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest" as required by Exemption (f). Based on the Department's response and the "Exemption log" provided, it is unclear which specific records were withheld or redacted under each exemption. It is additionally uncertain to whom the exemptions claimed apply. Particularly, it is unclear if the records apply to victims, suspects or the subject of the record. I understand a Public Records Division staff attorney contacted your office about this appeal but was unable to reach you prior to the issuance of this decision. Conclusion Given that the Department did not meet its burden to explain how an exemption applies to the records, the requested records may not be withheld. Accordingly, the Department is hereby ordered to provide Mr. Scoggins with responsive records, provided 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. The Department may file a request for reconsideration of this determination within ten business days of the date of this determination letter. Sincerely, Rebecca S. Murray Supervisor of Records cc: Allen Scoggins