Justice Ainooson v. Department of State Police - Crime Lab (SPR 20182089)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 9, 2019 SPRlS/2089 Kerry Collins, Esq. Department of State Police - Crime Lab 124 Acton Street Maynard, MA O1 7 54 Dear Attorney Collins: I have received the petition of Justice Ainooson appealing the response of the Department of State Police (Department) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Ainooson requested various categories ofrecords related to case file number 05-113-0263. Previous Appeal This appeal is the subject of a previous appeal. See SPRl 8/1666. (November 27, 2018). I closed SPRl 8/1666 by ordering the Department to provide Mr. Ainooson with a response in a manner consistent with the order, the Public Records Law and its Regulations within 10 business days. In SPR18/1666 Mr. Ainoonson took issue with File 305 missing from the Department's filing system, and the withholding of the video contained in File 306. It is my understanding the Department provided Mr. Ainooson a response dated November 30, 2018. Current Appeal In the Department's November 30th response, you provided Mr. Ainooson the video contained in File 306. You state, "I had previously withheld this video under the mistaken impression that I could not send you a DVD/CD." In reference to file 305, you state, "I have confirmed that the Crime Lavatory does not seek permission from the Records Conservation Board to destroy case files/records ... [t]herefore, this case file would not be subject to the retention schedule period and there is no record that the Department could locate that it sought permission to destroy the records." You further expressed to Mr. Ainooson that "[t]he Department again reiterates that File 305 cannot be located after a diligent search." Unsatisfied with this response, Mr. Ainooson petitioned this office and as a result SPR18/2089 was opened. In his petition dated December 17, 2018, Mr. Ainooson states, "I am writing due to Kerry Collins of the State Police Crime Laboratory still has not completely compiled with my public 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

Attorney Collins SPR18/2089 Page 2 January 9, 2019 records request. Presently Mrs. Collins is still claiming that she has been unable to find file 305 which is the main file that I have requested and need." No Duty to Create Records Please be advised, 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 of records at the time of the request. See G. L. c. 66, § IO(a)(ii). Conclusion Whereas the Department does not possess records responsive to Mr. Ainooson's request and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. Sincerely, ~ Rebecca S. Murray Supervisor of Records cc: Justice Ainooson