Justice Ainooson v. Department of State Police Crime Laboratory (SPR 20181666)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 27,20 18 SPRl811666 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 Justice Ainooson appealing the response of the Department of State Police Crime Laboratory (Department) to a request for public records. G. L. c. 66, 8 IOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Ainooson requested documents related to case file number 05-1 13-0263. On August 14,2018 and August 15,2018 , the Department provided Mr. Ainooson with records, including the Firearms Identification Section file. In an August 29,2018 letter, you advised Mr. Ainooson that there were two Crime Scene Services Section files, File 305 and File 306. Your response states, "File 305 could not be located despite an extensive and exhaustive search of the Maynard Crime Laboratory and the Lakeville Crime Laboratory." The Department provided Mr. Ainooson with 13 pages of records from File 306, and has withheld the video recording in its entirety. You informed Mr. Ainooson that this recording cannot be produced in still images; therefore, the Department cannot provide the actual recording to him. After receiving the Department's response, Mr. Ainoonson petitioned the Supervisor of Records (Supervisor), and this appeal was opened. Mr. Ainoonson takes issue with File 305 missing from the Department's filing system, and the withholding of the video contained in File 306. 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, § 10A(d); 950 C.M.R. 32.03(4). "Public records" is broadly defined to include all documentary materials or data, regardless of physical 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 November 27,2018 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, 9 7(26). Video Recording The Department has withheld the video contained in File 306 in its entirety without claiming an exemption to allow for its withholding. 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 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. Flatlev, 419 Mass. 507, 5 1 1 (1995) (custodian has the burden of establishing the applicability of an exemption). Records Management The Department informed both Mr. Ainooson and this office that after diligent searches in both Department Crime Laboratory offices and its archives, that the Department has not located File 305. The Department did not indicate what the record retention period is for this particular file, and whether the Department could have sought permission to destroy that particular file. The fact that the Department cannot locate the requested file raises records management issues. Order Accordingly, the Department is ordered to provide Mr. Ainooson with a response, 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, u Rebecca S. Murray Supervisor of Records cc: Justice Ainooson