Adam Bradley v. Department of State Police - Crime Lab (SPR 20190789)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords April 30, 2019 SPR19/0789 Darina Griffin, Esq. Department of State Police - Crime Lab 124 Acton Street Maynard, MA 01754 Dear Attorney Griffin: I have received the petition of Adam Bradley appealing the response of the Department of State Police - Crime Lab (Department) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1 ). Specifically, Mr. Bradley requested the following categories of records, which he indicates "are associated with [the Department's] laboratory Case# 12-09339, and Massachusetts State Police Departments Case# 2012-110-0192:" 1) Any and all reports authored by Massachusetts State Police Troopers: A) Lieutenant Robin Fabry; B) Kevin Baker; C) Lieutenant Alan Hunte; D) Christopher Doughtery; E) Lieutenant Michael Coleman; F) Anthony DeLucia; G) Timothy MacDougall; H) Eric Mitza; I) Joel Gagne; Including, but limited to Crime Scene Service Section reports. 2) Any and all copies of color photographs, documents, reports relative to (1-5) blue examination latex rubber gloves ("gloves") discovered at: 10 Sesame Street, Billerica MA, 01862, including but not limited to the following: A) Gloves original evidence submission form signed and dated by MacDougall with the lims bar coed sticker; B) Gloves gunshot residue administrative and technical review forms; C) Gloves case log (12-09339), including but not limited to QA notes; D) Color photographs of gloves taken at the location found and of its packaging. 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

Darina Griffin, Esq. SPR19/0789 Page 2 April 30, 2019 E) Gloves print test administrative and technical review forms. 3) An index list of all reports, documents, case information that was either reset, edited, corrected or deleted. Pursuant to the Massachusetts State Police Crime Laboratory ("MSPCL") Forensic Services Group ("FSG") Lims Protocol and user manual 2012 ver. 1.0, 12.2 (Lims report resetting) and the Porter Lee Corporations bar-code, evidence, analysis, statistics and tracking ("B.E.A.S.T.") Manuals require that any report, document, case information corrected, edited, resetted, and or deleted must be documented. I am not requesting the specifics, just an index as in how many reports, documents and case information was edited, corrected, resetted and or deleted including what reports. 4) Any and all copies of the Crime Scene Services Section Reports numbered: 1, 3, 4, 5, 7, 8, 9, 11, 12, 13, 15, 17, 18, 20, 21, 22, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33,35,36,37,38,40. The Department responded to Mr. Bradley's request for records in a letter dated April 4, 2019. 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, § 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, § 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, § 1O (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 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, § lO(b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. First category of records In its response, the Department indicates that with respect to "Request # 1, reports requested a), d), and e) do not exist; pertaining to b), c), f), i), do not reside within the Crime

Darina Griffin, Esq. SPR19/0789 Page 3 April 30, 2019 Laboratory and must be requested from the Middlesex District Attorney's Office." The Department indicates that it provided responsive records to request G) and H). 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 ofrecords at the time of the request. See G. L. c. 66, § lO(a)(ii), (b)(ii). Also, the duty to comply with requests for records extends to identifying the agency or municipality that may be in possession, custody or control of the public record sought, if known. See G. L. c. 66, § 1O (b )(iii). Whereas, the Department has confirmed it does not possess responsive records for requests A), D) and E), directed Mr. Bradley to the proper custodian for requests B), C), F), I) and provided responsive records for requests G) and H), I find the Department has met its burden in responding to the first category of Mr. Bradley's request. See G. L. c. 66, § lO(a)(ii), (b)(ii-iii). Second category of records With respect to the second category of requested records, the Department indicates that "there are co-defendants associated 'with the conviction in [Mr. Bradley's] case. Therefore ... [the Department] can confirm records exist pertaining to A and C regarding the 'case log' but [Mr. Bradley's] other requests do not exist." Whereas, the Department indicates it does not possess responsive records to requests B), D) and E) of the second category of Mr. Bradley's request, I find it has met its burden in responding to those requests. See G. L. c. 66, § 10(a )(ii), (b )(ii). With respect to requests A) and C), the Department indicates that it is withholding those records responsive pursuant to Exemption (f) of the Public Records Law. The Department explains that "effective law enforcement would be prejudiced as this matter is subject to unresolved criminal proceedings and the defendant is represented by Counsel. Please be further advised that access to evidentiary records is also governed by the rules of procedure associated with such court proceedings." Exemption (I) Exemption (f) permits the withholding of: investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest G. L. C. 4, § 7(26)(f).

Darina Griffin, Esq. SPR19/0789 Page 4 April 30, 2019 A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 371 Mass 59, 62 (1976). Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Attorney Gen., 52 Mass. App. Ct. 244,248 (2001); Reinstein v. Police Comrn'r of Boston, 378 Mass. 281,290 n.18 (1979). Exemption (f) invites a "case-by case consideration" of whether disclosure "would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest." See Reinstein, 378 Mass. at 289-90. The Supreme Judicial Court has stated that Exemption (f) aims at "the avoidance of premature disclosure of the Commonwealth's case prior to trial, the prevention of the disclosure of confidential investigative techniques, procedures, or sources of information, the encouragement of individual citizens to come forward and speak freely with police concerning matters under investigation, and the creation of initiative that police officers might be completely candid in recording their observations, hypotheses and interim conclusions." Bougas, 371 Mass. at 62; cited with approval in Reinstein, 378 Mass. at 289. With respect to requests A) and C) within the second category of Mr. Bradley's request, I find that the Department's response did not contain the specificity required in a denial of access to public records. While the Department claims the responsive records pertain to an ongoing investigation and prosecution, it does not explain the subject of the investigation nor does it describe how the requested records are part of the investigation. Further, the Department did not demonstrate how disclosure of the responsive records "would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest" as required to withhold records under Exemption (f). Specifically, it is uncertain how effective law enforcement would be prejudiced, because "this matter is subject to unresolved criminal proceedings and the defendant was represented by Counsel." The Department must clarify this matter. Third category of records The Department indicates that with respect to "Request #3, the records [Mr. Bradley] request[ s] do not exist." Whereas, the Department indicates it does not possess responsive records, I find it has met its burden in responding to the third category 9f Mr. Bradley's request. See G. L. c. 66, § lO(a)(ii), (b)(ii). Fourth category of records The Department indicates that with respect to "Request #4, the Crime Lab does not number reports as [Mr. Bradley has] requested. Therefore [the Department] cannot respond to

Darina Griffin, Esq. SPR19/0789 Page 5 April 30, 2019 [his] request as currently written. Reports are identified by the author or associated with the unit/section of the Crime Lab." This office encourages both parties to communicate further to enable the Department to provide responsive records. See G. L. c 66, § lO(a)(i) (the request must reasonably describe the public record sought). Please be advised that it is valid for the custodian ofrecords to suggest a "reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency or municipality to produce records sought more efficiently and affordably." See G. L. c. 66, § lO(b)(vii). Accordingly, the Department may ask Mr. Bradley for a more refined search in order for the Department to provide the responsive records in a more efficient manner. The Department must use its knowledge of the records to facilitate the provision of any additional responsive records. See 950 C.M.R. 32.04(5). Order Accordingly, the Department is ordered to provide Mr. Bradley with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten 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: Adam Bradley