Joao Fernandes v. Department of State Police - Crime Lab (SPR 20180746)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 6,2018 SPR181746 Kerry A. Collins, Esq. Legal Counsel Department of State Police Crime Laboratory 124 Acton Street Maynard, MA 0 1754 Dear Attorney Collins: I have received the petition of Joao Fernandes appealing the response of Department of State Police Crime Laboratory (Department) to a request for public records. G. L. c. 66, 5 IOA; see also 950 C.M.R. 32.08(1). Specifically, on April 10,2018, Mr. Fernandes requested "any -- files in reference to [an identified matter], other suspect and informant information, ballistic reports, witness names and interviews, text messages between investigators and prosecutors, along with files that may be in the possession of the MSP Crime Lab of unrelated matters." On April 19,2018, the Department denied his request, asserting Mr. Fernandes has a unique right of access to the records, the records are exempt from disclosure pursuant to the Criminal Offender Record (CORI) Act as it operates through Exemption (a) of the Public Records Law, and the records are exempt fiom disclosure pursuant to Exemption (c) of the Public Records Law. 950 C.M.R. 32.08(l)(a); G. L. c. 6, 5 167; G. L. c. 4, 5 7(26)(a), (c). 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, 5 IOA(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, 5 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, 5 lO(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 4 19 Mass. 507,5 1 1 (1 995) (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 021 08 (61 7) 727-2832- Fax: (617) 727-5914 sec.state.ma.us/pre * pre@sec.state.ma.us

Kerry A. Collins, Esq. Page 2 June 6,2018 If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Purpose of request; iclentity of requester; unique right of access Please note that the reason for which a requestor seelts 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 requestor. Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1 976). Accordingly, Mr. Fernandes' 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. 32.08(1)(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"). A; such, Mr. Fernandes may wish to consider another means of seeking to obtain any existing responsive records. In its response, the Department indicates that the identified matter "is currently the subject of Appellate proceedings and that [an identified individual] is represented by Counsel." The Department asserts that "[tlhe records being sought have been made available to the [identified individual] and [his or her] counsel through pre-trial discovery." Exemption (0) Exemption (a), ltnown as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute 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. 15 1, 54 (1 979); Ottawav Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977).

Kerry A. Collins, Esq. Page 3 June 6,2018 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. The Department has cited the CORI Act, G. L. c. 6, 5 167, as applicable to withhold responsive records. Please note that an updated definition of CORI is currently in effect. CORI, which is statutorily exempt from disclosure, is defined as: [Rlecords and data in any communicable form compiled by a Massachusetts 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, other judicial proceedings, previous hearings conducted pursuant to section 58A of chapter 276 where the defendant was detained prior to trial or released with conditions under subsection (2) of section 58A of chapter 276, sentencing, incarceration, rehabilitation, or release. Such information shall be restricted to information recorded in criminal proceedings that are not dismissed before arraignment. 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 . . . Criminal offender record information shall not include information concerning any offenses which are not punishable by incarceration In its response, the Department indicates it has withheld the requested records pursuant to the CORI Act, because "the documents contained in the Laboratory files are records and data in any communicable form complied by a Massachusetts criminal justice agency which concern an identifiable individual and relate to the nature or disposition of a criminal charge, an arrest, a pre- trail; proceeding, and other judicial proceedings." The Department asserts that Mr. Fernandes' "request falls within [Exemption (a)] since releasing the requested information would violate G.L. c. 6, 5 172, The Criminal Offender Record Information ('CORI') statute." fl Exemption Exemption (f) permits the withholding of: investigatory materials necessarily compiled out of the public view by law

Kerry A. Collins, Esq. Page 4 June 6,2018 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 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 (1 976). 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. 28 1,290 n. 18 (1 979). 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. In its response, the Department cites to the statutory language of Exemption (f) and states that "[elffective law enforcement would be prejudiced as this matter is subject to unresolved criminal proceedings and the defendant is represented by Counsel." Specificity The Public Records Law states that "the burden shall be upon the custodian to prove with specijicity the exemption which applies." G. L. c. 66, 5 lO(b)(iv)(emphasis added); see also Globe Newspaper Co. v. Police Cornrn'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 51 1. With respect to the unique right of access claim, in his petition for appeal, Mr. Fernandes disputes the Department's contentions indicating that the identified individual is pro se and seeking the documents to file a motion for a new trial while awaiting "a ruling in the mass appeals court sui-rounding these issues." As such, it is unclear whether or not Mr. Fernandes has a unique right of the access to this information at this time. With respect to its Exemption (a) claim, based on the Department's response it is unclear what records are being withheld and how each of those records constitute CORI. Therefore, I find the Department has not met its burden to withhold the responsive records under the CORI Act. With respect to its Exemption (f) claim, the Department's response does not address whether the responsive records pertain to an ongoing investigation, it does not explain the subject of any investigation nor does it describe how the requested records are part of the investigation. Further, the Department did not demonstrate how disclosure of the responsive records "would probably so prejudice the possibility of effective law enforcement that such

Kerry A. Collins, Esq. Page 5 June 6,201 8 disclosure would not be in the public interest" as required to withhold records under Exemption (f). The Department's response did not contain the specificity required in a denial of access to public records. Instead, the Department's response merely cites Exemptions (a) and (f) without any further explanation as to the exemption's applicability to the requested records. The Department is not permitted to issue a blanket denial without providing any further information with respect to the requested records. As a result, I find that the Department failed to satisfy its burden in responding to this records request. The Department is advised that a records custodian is required to not only cite an exemption, but to specifically explain the applicability of the exemption to the requested records in order to comply with the Public Records Law and its Access Regulations. I find the Department must provide a response to Mr. Fernandes that provides additional information regarding whether the Department possesses responsive records. See G. L. c. 66, fj 1O (b)(iv) (a written response shall "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 .. . . ); Flatley, 4 19 Mass. at 5 1 1 (custodian has the burden of establishing the applicability of an exemption). Conclusion Given that the Department has not met its burden to explain how an Exemption applies to the requested records, the requested records may not be withheld. Accordingly, the Department is ordered to review the records, redact where necessary, and provide Mr. Fernandes 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: Joao Fernandes