Steven A. James v. Department of State Police - Crime Lab (SPR 20180988)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 17, 2018 SPR18/988 Kerry A. Collins, Esq. Department of State Police - Crime Laboratory 124 Action Street Maynard, MA 01754 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, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on April 9, 2018, Mr. James requested records related to an identified occurrence. Previous appeal This request was the subject of a previous appeal. See SPRl 8/818 Determination of the Supervisor of Records (June 20, 2018). I closed SPRl 8/818 by ordering the Department to provide Mr. James with a response to his request, provided in a manner consistent with the order, the Public Records Law and its Regulations within ten business days. On June 27, 2018, the Department provided another response to Mr. James. Unsatisfied with the Department's response, Mr. James petitioned this office and this appeal, SPRl 8/988, was opened as a result. 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, § 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 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. SPR18/988 Page 2 July 17, 2018 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, § 1 O(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' 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(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 such, Mr. James may wish to consider another means of seeking to obtain any existing responsive records. No duty to create records 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 ofrecords at the time of the request. See G. L. c. 66, § IO(a)(ii). In its June 2J1h response, the Department indicates that "another review was conducted and again, no further records were located." Conclusion Whereas the Department has confirmed it does not possess responsive records, I find it has met its burden in responding to this request. Id. Accordingly, I will now consider this appeal closed.

Kerry A. Collins, Esq. SPRlS/988 Page 3 July 17, 2018 If Mr. James is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 1O (b) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, ~ Rebecca S. Murray Supervisor of Records cc: Steven A. James