Jamie Resende v. Department of State Police - Crime Lab (SPR 20181139)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 10,2018 SPR1811139 Kerry A. Collins, Esq. Department of State Police Crime Laboratory 124 Acton Street Maynard, MA 01754 Dear Attorney Collins: I have received the petition of Jaime Resende appealing the response of the Department of State Police Crime Laboratory (Department) to a request for public records. G. L. c. 66, 9 l0A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Resende requested a copy of all documents relating to his conviction in Brockton Superior Court. The Department provided Mr. Resende with a copy of all records responsive to his request. At issue in this appeal is Mr. Resende's request to obtain an un-redacted copy of the police report he received in February 201 8. Specifically, Mr. Resende seeks the name of the person listed in the report and who was charged with a crime and is awaiting trial for the offenses associated with the report. The Department denied Mr. Resende's request, for the name of the individual who was arrested and is currently awaiting trial, under the Criminal Offender Record Information Act (CORI) as it operates through Exemption (a). Prior appeal The requested un-redacted report and specifically the name of the arrested individual awaiting trial was the subject of a prior appeal. See SPR18/894 Determination of the Supervisor of Records (Supervisor) (July 2,2018 ). In my July 2ndd etermination, I found that the Department had not met its burden of specificity in withholding the name of this individual under CORI. As a result, I ordered the Department to clarify how the record was created as part of a criminal proceeding. Purpose of request; identity of requestor In his February 20,2018 letter to the Department and his June 15" and July 24'" petitions to the Supervisor, Mr. Resende indicates that his request is made under the Rules of Discovery and the Public Records Law, and that he is entitled to an un-redacted record now as during discovery. It is important for Mr. Resende to understand that his interest in the identity of the 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 August 10,2018 other person listed on the report that he received from the Department 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. Bouaas 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 un-redacted forensic report 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(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."); 950 C.M.R. 32.08(1)(a). As such, Mr. Resende may wish to consider another means of seeking to obtain the un-redacted forensic report. Tlze 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, $ 1O A(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, 5 10(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 see exemption or exemptions upon which the withholding is based.. ."); 950 C.M.R. 32.06(3); also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 51 1 (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 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

Kerry A. Collins, Esq. Page 3 August 10,201 8 restricted. See Attorney Gen. v. Collector of Lynn, 377 Mass. 15 1, 54 (1 979); 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 individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. Criminal Offender Record Information (CORI) Act In both its March 2gth and July 2othr esponses, the Department contends that while the forensic investigation report was provided, the name of the individual who is not the victim was withheld as CORI. 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 CORI. Section 3 of Chapter 69 of the Acts of 201 8. The following 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, 5 167 (emphasis added).

Kerry A. Collins, Esq. Page 4 August 10,2018 In its March 2gthr esponse, the Department informed Mi-. Resende that the name of the individual listed on the report was redacted as CORI. The Department explained that there is a pending criminal prosecution regarding this individual. In the June 2gtht elephone 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 record was recorded in a criminal proceeding. Consequently, on July 2ndI found that the Department had not met its burden of specificity in withholding the name of this individual. As a result, I ordered the Department to clarify how the record was created as part of a criminal proceeding. In its July 20,201 8 response, the Department asserts, "[tlhe name redacted on Sergeant Tarbokas' report was charged with a crime prior to this report [being] written and that person is currently awaiting trial for the offenses associated with this report. It is the Department's position that reports generated by the Department that: 1) identify an individual; and 2) relate to the nature of a criminal charge or arrest are considered [CORI] under G. L. c. 6, $5 167-178B." Sergeant Tarbokas details a fingerprint comparison using the fingerprint information already in the system and obtained through the CJIS (Criminal Justice Information Services). The report also states, "Comparison was made with fingerprints found at the scene of the crime and reflects the test results, conclusions, interpretations, and/or findings of the analyst, Sergeant Tarbokas." However, I still find that the Department has not clarified whether the report, and in particular the "name of the arrestee" is information recorded in a criminal proceeding. Therefore, I find that the Department must provide Mr. Resende with the name of the individual that the Department claims is restricted by CORI. Conclusion Given that the Department did not meet its burden in supporting its claim that the name of the individual on the forensic report who was arrested is CORI, I find that the Department is ordered to provide Mr. Resende with the records in a manner consistent with this order, the Public Records Law and its Regulations within 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