Jamie Folk v. Department of State Police - Crime Lab (SPR 20181494)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords October 24, 2018 SPRlS/1494 Kerry A. Collins, Esq. Department of State Police Crime Lab 124 Acton Street Maynanr,MA O1 754 Dear Attorney Collins: I have received the petition of Jamie Folk appealing the response of the Department of State Police Crime Lab (Department) to a request for public records. G. L. c. 66, § IOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Folk requested a copy of all emails an identified individual sent to the Crime Laboratory. Previous appeal This request was the subject of a previous appeal. See SPRl 8/1266 Determination of the Supervisor of Records (August 31, 2018). I closed SPR18/1266 by ordering the Department to review the records, redact where necessary, and provide Mr. Folk with responsive records, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten business days. The Department provided a response dated September 19, 2018. Unsatisfied with the Department's response, Mr. Folk petitioned this office and this appeal, SPR18/1494, 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, § IOA(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. SPR18/1494 Page 2 October 24, 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. Current appeal In the Department's September 19th response, it indicates that it is withholding 333 emails pursuant to the Criminal Offender Record Information (CORI) Act. See G. L. c. 6, §§ 167-l 78B. The Department indicates its "position remains unchanged." The Department refers to a court case involving the interpretation of the Criminal Offender Record Information (CORI) Act; specifically it indicates "[p]lease be aware that a single justice of the Appeals Court recently (July 19, 2018) issued a stay in the matter of Boston Globe Media Partners, LLC v. Department of Criminal Justice Information Services case (on appeal from Suffolk, C.A. No. 1584 CV 01404). Implicit in the Court's Order is a holding that the Department has, in relation to its position on what constitutes CORI, demonstrated a reasonable likelihood of success on the merits." It should be noted that the docket entry regarding this stay indicates "the Superior Court's judgment is stayed, only insomuch as the judgment requires the named defendants to provide access to the records that are the subject of this action." It does not appear that the records at issue in this appeal are the subject of the above-referenced action. The Department also mentions Commonwealth v. Pon, 469 Mass. 296 (2014), as well as other statutes and court decisions identified in its prior response and notes it "continues to maintain the position that records identifying an individual and relating to the nature of a criminal charge or arrest are considered Criminal Offender Record Information ... under G.L. c. 6, §§ 167-178B and are exempt from public disclosure." The Department also asserts that fingerprint records and information are not public records pursuant to G. L. c. 66A, § 1-3 as well as the CORI Act and other statutes as they operate through Exemption (a) of the Public Records Law. See G. L. c. 4, § 7 (26)(a); G. L. c. 6, §§ 167-l 78B; G. L. c. 94C, § 44; G. L. c. 41, § 98F; G. L. C. 276, § 100. Despite the Department's September 19th response, and for the reasons described in my August 31st determination, I find the Department has not met its burden to withhold all responsive records in their entirety under the CORI Act or other statutes referenced in its responses. Additionally, although the Department has identified 333 withheld responsive emails, based on the Department's September 19th response, it is unclear if it possesses additional responsive records-fingerprint records or information; therefore, the Department has not met its burden to show how these statutes apply. G. L. c. 66, § IO(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 ... "). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § lO(a).

Kerry A. Collins, Esq. SPRIS/1494 Page 3 October 24, 2018 Conclusion Given that the Department did not meet its burden to explain how an exemption applies to the records, the Department is ordered to provide Mr. Folk with responsive records, provided 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 -· Supervisorof·Records· cc: Jamie Folk