Joao Fernandes v. Department of State Police - Crime Lab (SPR 20181034)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 26, 201 8 SPRl811034 Kerry A. Collins, Esq. 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 the Department of State Police - Crime Laboratory (Department) to a request for public records. G. L. c. 66, tj 10A; 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." Previous appeal This request was the subject of a previous appeal. See SPR181746 Determination of Supervisor of Records (June 6,2018 ). I closed SPR181746 by finding the Department had not met its burden to explain how an exemption applies to the requested records and ordered the Department to review the records, redact where necessary, and provide Mr. Fernandes with responsive records, provided in a manner consistent with the order, the Public Records Law and its Regulations within ten business days. On June 20,2018 , the Department provided another response to Mr. Fernandes, which included redacted responsive records. Unsatisfied with the Department's response, Mr. Fernandes petitioned this office and this appeal, SPR1811034, was opened as a result. On July 25,2018, while this appeal was pending, the Department provided another response to this office. 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, tj 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). One Ashburton Place, Room 17 19, Boston, Massachusetts 021 08 * (617) 727-2832. Fax: (61 7) 727-5914 sec.state.ma.us/pre = pre@sec.state.ma.us

Kerry A. Collins, Esq. Page 2 July 26,2018 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, fj lO(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 5 11 (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, fj 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; identi0 of requestor; unique right of access 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 (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"). As such, Mr. Fernandes may wish to consider another means of seeking to obtain any existing responsive records. Current appeal In his petition for appeal, dated July 12,2018, Mr. Fernandes indicates that he is "seeking assistance from [this office] in this matter and request[s] that [this office] contact [the Department] Attorney Collins and order her and the Lab to release the 'others' names that may have been discovered on evidence related to the criminal charges [an identified individual is] currently sentenced for and any investigative matters that may refer to [the identified individual]. Exemption (c) In its June 2othr esponse, the Department indicates it provided Mr. Fernandes with "responsive records from Criminalistics, Firearm Identification Section, Crime Scene Services

Kerry A. Collins, Esq. Page 3 July 26,20 18 and DNA units; chain of custody, case jacket and case log." The Department states that "[tlhe only redacted documents are contained within the DNA file pursuant to G.L. c. 4, 57, c1.26(c). Those redactions pertain to the DNA profile of others which the Department asserts are medical information and therefore exempt under the first clause" of Exemption (c). 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 Exemption (c) contains two distinct and independent clauses, each requiring its own analysis. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427,432-33 (1983). The first clause, relevant to this determination, creates a categorical exemption for personnel and a. medical information that relates to an identijable individual and is of a "personal nature." at 434. Medical information that is of a personal nature and relates to a specijcally named individual is exempt from disclosure. Brogan v. School Comm. of Westport, 401 Mass. 306, 308 (1987); Globe Newspaper CO.,3 88 Mass. at 438. Generally, medical information is sufficiently personal to warrant exemption. Globe Newspaper Company, 338 Mass. at 432-34. There is a strong public policy in Massachusetts that favors confidentiality as to medical data about a person's body. Globe Newspaper Co. v. Chief Medical Examiner, 404 Mass. 132, 135 (19 87). In its July 25thr esponse, the Department indicates that "[rlegarding the DNA, the only redactions pertained to the DNA profile itself and not the named person. Specifically the records provided included 2 other named individuals which the Department did not redact pursuant to Attorney Murray's decision." Based on the Department's response, I find that due to the inclusion of the individuals' names, the medical information relates to an identifiable person. As such, I find the Department has met its burden to withhold the redacted portions, the DNA profiles, under Exemption (c) of the Public Records Law. Additional responsive records In Mr. Fernandes' July 12'~pe tition for appeal, he asserts that his request for "other suspect information, communications between MSP, Brockton, Police and the prosecutors involved in this case and their notes, has not been disclosed." Mr. Fernandes states that "[ilt appears that the MSP Lab Attorney, tossed these 3 12 photos of Tupac the rapper and Scarface the gangster, included, to fill up the envelope to compensate for what I initially requested for and did not receive." 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.

Kerry A. Collins, Esq. Page 4 July 26,201 8 L. c. 66, 5 lO(a)(ii) (written response must "identify any public records or categories of public records sought that are not within the possession, custody, or control of the agency"). In its July 25'" response, the Department indicates that upon reviewing Mr. Fernandes' petition for appeal, "regarding the communications between MSP, Brockton Police and the prosecutors, [the Department] provided Mr. Fernandes with the Lab's case communication log which is how the lab documents communication between parties on a Lab case. [The Department] did not interpret Mr. Fernandes request beyond the Lab's communication. If Mr. Fernandes was seeking communications of MSP Troopers outside of the Lab, [the Department] would have directed him to the Legal Department at General Headquarters, 409 Worcester Road, Framingham MA 0 1702. Furthermore, [the Department] would have also forwarded his request to General Headquarters as well.. . [Tlhe Lab has complied with his request and provided all available records pursuant to Attorney Murray's decision." See SPR181746. The Department explains that "[rlegarding the photographs, [the Department] provided Mr. Fernandes with all of the photographs that were talcen and held by crime scene services section pursuant to his request. There were a large quantity of photographs, some of which did include photographs of posters on a wall and parts of what appeared to be an apartment." Whereas the Department confirms it does not possess any additional responsive records and has indicated an alternative custodian who may be in possession of the records Mr. Fernandes is seeking, I find the Department has met its burden in responding to this records request. See G. L. c. 66, 5 lO(a)(ii). I understand a Public Records Division staff attorney contacted your office about this matter. Conclusion Given that the Department has met its burden in responding to this records request, I will now consider this administrative appeal closed. If Mr. Fernandes 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. G. L. c. 66, 5 lO(b) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Rebecca S. Murray V Supervisor of Records cc: Joao Fernandes