Steven A. James v. Department of State Police - Crime Lab (SPR 20180818)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 20,2018 SPRl818 18 Kerry A. Collins, Esq. Legal Counsel Department of State Police Crime Laboratory 124 Action Street Maynard, MA 01 754 Dear Attorney Collins: I have received the petition of Steven A. James appealing the response of the Department of State Police Crime Laboratory (Department) to a request for public records. G. L. c. 66, 5 l0A; see also 950 C.M.R. 32.08(1). Specifically, on April 9,2018, Mr. James requested records related to an identified occurrence. The Department responded to his request by providing responsive records and indicated others had been withheld pursuant to Exemption (c) of the Public Records Law. G. L. c. 4, 5 7(26)(c). Petitions to tlze Supervisor of Records The requirements for an appeal are follows. The appeal shall be in writing, shall include a copy of the letter by which the request was made and, shall include a copy of all correspondence from the custodian. The Supervisor shall accept an appeal only from a person who had made his or her record request in writing. An oral request, while valid as a public record request pursuant to 950 CMR 32.06(1)(a), may not be the basis of an appeal under 950 C.M.R. 32.08. 950 C.M.R .32.08(l)(g). In a letter dated June 4,20 18, Mr. James petitioned the Supervisor for an appeal of his request to the Department and provided the Supervisor with a copy of his written request made to the Department and a copy of a response from the Department dated May 29,2018 . In the Department's May 29'" response, it indicates the Department had previously provided Mr. James with a response to his request on April 19,2018 . A copy of the Department's April 19" response was not included in his petition for appeal. Mr. James is advised that in petitioning the Supervisor for an appeal the requestor shall provide copies of all correspondence associated with the petition, including a complete copy of Id. all written responses from the custodian associated with the request. 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. Page 2 June 20,2018 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, 5 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, 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, 3 lO(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 41 9 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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, 5 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; identity of requestor 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 requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Mr. James's 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"). As such, Mr. James may wish to consider another means of seeking to obtain any existing responsive records. Additional responsive records In Mr. James's petition for appeal, he asserts the Department possesses additional responsive records and specifically takes issue with the Department not providing certain categories of records. Please note, whereas Mr. James does not indicate he is taking issue with

Kerry A. Collins, Esq. Page 3 June 20,20 18 the withheld records addressed in the Department's May 2gthr esponse, I decline to opine on the Department's Exemption (c) claim at this time. Under the Public Records Law, the Department is not required to create a record in response to a public records request. See G. L. c. 66, 5 6A(d). 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 of the request. G. L. c. 66, § 10(a)(ii). In his petition, Mr. James indicates that the Department "has made no reference nor released documents relating to Trooper Michael Arnold ... who testified at [an identified] trial in Plymouth County Superior Court, and reports of Trooper Paula Loud, who interviewed witnesses in this matter." Mr. James asserts that "[ilt is well known that in Plymouth County, specifically in Brockton Mass. when there is a homicide, Mass. state police crime scene technicians are on the scene to collect evidence. Ballistics, fingerprint technicians and troopers who interview witnesses and collect data are all on the scene. None of this information have [sic] been disclosed." Although the Department provided Mr. James with some responsive records, based on Mr. James' petition for appeal in conjunction with the Department's response, it is unclear if the Department possesses any other records responsive to his request. The Department must clarify this matter. Order Accordingly, the Department is hereby ordered to provide Mr. James with a response to the request, 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 pre0sec.state.ma.u~. Sincerely, - Rebecca S. Murray Supervisor of Records cc: Steven A. James