Jamie Resende v. Department of State Police Crime Laboratory (SPR 20180894)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 2, 2018 SPR18/894 Kerry A. Collins, Esq. Legal Counsel Department of State Police Crime Laboratory 124 Acton Street Maynard, MA 01754 Dear Attorney Collins: I have received the petition of Jamie Resende 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 ). Specifically, Mr. Resende requested a copy of: "any and all documents pertaining to my convictions in Brockton Superior Court." The Department provided Mr. Resende with a copy of all the file's contents, and informed him that the Department has no further records responsive to his request. In a March 20th letter, Mr. Resende objected to the Department's redaction of the report of the investigations by the Plymouth County Detective's Unit. He seeks the name of the victim and the name of the other suspect. Further, Mr. Resende indicated he seeks the date that the finger-print match (AFIS) was made, and ifthere are any additional records pertaining to the other individual listed in the investigation report. The Department's March 281 h response indicates that Mr. Resende was informed in a letter that accompanied the records that the Department redacted the victim's name under Exemption (f), and that the name of the other individual has been withheld pursuant to Exemption (a) and the Criminal Offender Records Information (CORI) Act. As a courtesy, the Department waived all applicable fees in the Public Records Law when it provided the records to Mr. Resende. With regard to Mr. Resende's March 23rd letter asking for the date when the AFIS match referenced in the report was made, and if there are any further records, you informed Mr. Resende that you reviewed the file's contents a second time and did not find a date when the AFIS match was made. Furthermore, you informed this office in a conversation on June 28th that after another review of the file's contents, you found that the Department has no further records responsive to 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. SPR18/894 Page2 July 2, 2018 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, § 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. See G. L. c. 66, § lO(a)(ii). Given that the Department is under no duty to create AFIS related records in response to this request, I will consider that portion of the appeal closed. Petitions to the Supervisor for an appeal As a result of the redactions of the names of the victim and other individual listed in the responsive records, Mr. Resende petitioned the Supervisor of Records (Supervisor) and this appeal was opened. A review of the petition to the Supervisor filed by Mr. Resende reveals that he did not provide this office with a copy of the Department's response that accompanied the responsive records provided to him by the Department. Nor, did Mr. Resende provide a copy of his petition for an appeal to the Department's Records Access Officer (RAO). A Public Records Division staff member provided the RAO with a copy of the appeal file, including the petition. Mr. Resende is advised that when petitioning the Supervisor for an appeal, "the requestor shall provide complete copies of all correspondence associated with the petition, including: a copy of the letter by which the request was made; and a copy of all written responses associated with the request(s) subject to the petition." 950 C.M.R. 32.08(g)(l),(2). In addition, when petitioning the Supervisor for an appeal, "the requestor shall provide a copy of such petition to the RAO associated with such petition." 950 C.M.R. 32.08(h). Status of the requestor; reason for the request In his February 20, 2018 letter to the Department, Mr. Resende indicates that his request is made under the Rules of Discovery and the Public Records Law. He also indicates in his June 15th petition to the Supervisor that the Department should provide him with an un-redacted copy. It is important for Mr. Resende to understand that his interest in the responsive record does not afford him any greater right of access to the requested information under the Public Records Law than any other person. The Public Records Law does not distinguish between requestors. Access to a record requested 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. Resende's status will play no role in a determination as to whether the record should be disclosed to the public in its entirety. 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); 950 C.M.R. 32.08(l)(a) (the administrative appeal process "shall not apply to

Kerry A. Collins, Esq. SPR18/894 Page 3 July 2, 2018 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."); 950 C.M.R. 32.08(l)(a). As such, Mr. Resende may wish to consider another means of seeking to obtain the existing responsive record(s). 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, § 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 ... "); 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). 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). 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

Kerry A. Collins, Esq. SPR18/894 Page4 July 2, 2018 individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. It should be noted that as part of the criminal justice reform bill recently signed by Governor Baker on April 13, 2018, there has been an update to the definition of CORL Section 3 of Chapter 69 of the Acts of 2018. Given that it was signed with an emergency preamble, this is the current definition of CORI: "Criminal offender record information", records 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 be limited to information concerning persons who have attained the age of 18 and shall not include any information concerning criminal offenses or acts of delinquency committed by any person before he attained the age of 18; provided, however, that if a person under the age of 18 is adjudicated as an adult, information relating to such criminal offense shall be criminal offender record information. Criminal offender record information shall not include information concerning any offenses which are not punishable by incarceration. G. L. c. 6, § 167 (emphasis added). In its March 28th response, the Department informed Mr. Resende that the name of the individual listed on the report was redacted as CORL The Department explained that there is a pending criminal prosecution regarding this individual. In the June 28th telephone conversation with a Public Records Division attorney, you confirmed that the criminal proceedings regarding this individual were not dismissed before an arraignment and that the criminal process has moved toward prosecution. However, it is unclear whether the withheld responsive records were recorded in a criminal proceeding. Consequently, I find that the Department has not met its burden of specificity in withholding the name of this individual. As a result, the Department must clarify how the record was created as part of a criminal proceeding. Exemption (I) 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

Kerry A. Collins, Esq. SPR18/894 Page 5 July 2, 2018 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, victims, 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 289-290. The Department indicated that the victim's name and identifying information was redacted under Exemption (f). In a discussion with this office, you asserted that "release of the identity of a victim of a crime would probably make other individuals who are victims of crimes reluctant to come forward and report such conduct." Seeing that courts have found records custodians may withhold information identifying victims, I find that the Department has met its burden to withhold the name and identifying details of the victim who is the subject of this matter under Exemption (f). See Antell, 52 Mass. App. Ct. at 248 (redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses). Conclusion Given that the Department has met its burden of specificity in withholding the name of the victim under Exemption (f), I find that this appeal is closed pertaining to the identifying information of the victim. However, I find that the Department has not met its burden of specificity in withholding the name of the individual who is neither the victim nor the requestor. Accordingly, the Department is ordered to provide Mr. Resende with a further response to clarify its claim that the CORI Act applies to allow the withholding of the name of this individual. This response must be 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Mr. Jaime Resende