Andrew Quemere v. Department of State Police - Crime Lab (SPR 20191168)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords June 25, 2019 SPR19/1168 Darina Griffin, Esq. Legal Counsel Massachusetts State Police Crime Laboratory 124 Acton Street Maynard, MA O1 7 54 Dear Attorney Griffin: I have received the petition of Andrew Quemere appealing the response of the Department of State Police Crime Laboratory (Department) to a request for public records. G. L. c. 66, § 1 OA; see also 950 C.M.R. 32.08(1 ). Specifically, Mr. Quemere requested applications for accreditation made by the Department's Office of Alcohol Testing and any records related to the accreditation process. The Department responded to his request providing some responsive records and claiming copies of others could not be provided under Exemption (a) of the Public Records Law due to their status as copyrighted materials. G. L. c. 4, § 7(26)(a); 17 U.S.C. § 106. 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, § 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 must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. 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. SPR19/1168 Page2 June 25, 2019 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. Appeal In its response, the Department indicates that " ... the Department has submitted a conformance file and laboratory documentation to American National Standards Institute (ANSI) National Accreditation Board (ANAB) for their review. Some of those submitted documents are also available on the eDiscovery portal, which is located at ... https://oatdiscovery.chs.state.ma.us ... The eDiscovery portal includes a link to the ANAB website where the publically available guidelines are located as well as a link to the website where a licensed copy of the ISO/IEC 17025: (2017) guidelines can be purchased. The Office of Alcohol Testing maintains and updates the eDiscovery portal regularly." The Department asserts that "[t]he conformance file is based on material subject to federal copyright, namely, ISO/IEC 17025: (2017). To the extent the public records law requires records access officers to 'furnish a copy of any public record' (G.L. c. 66, s. 1O (a)) copyrighted materials are no public records, as the federal statute vests the exclusive right to create copies in the copyright holder. See 17 U.S.C. s. 106. Copyrighted materials are, therefore, 'specifically or by necessary implication exempted from disclosure by statute" when the means of that disclosure is copying. See G.L. c. 4, s. 7, cl. 26(a)." The Department indicates that it " ... is able to disclose these materials to [Mr. Quemere] when disclosure does not involve the creation of a new copy. The Department invites [Mr. Quemere] to review its copy of the conformance file and accompanying Office of Alcohol testing documents at the State Police Crime Laboratory." In his petition for appeal, Mr. Quemere asserts that "[t]he public records law does not distinguish between copyrighted and non-copyrighted materials." Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding ofrecords that specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7(26)(a). 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 restricted. See Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977).

Darina Griffin, Esq. SPR19/1168 Page 3 June 25, 2019 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. The statute provides in relevant part: Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: (1) to reproduce the copyrighted work in copies or phonorecords; (2) to prepare derivative works based upon the copyrighted work; (3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending; (4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly; (5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and (6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission. 17 U.S.C. § 106. Specificity Under the Public Records Law, the burden is on the custodian to prove with specificity the exemption which applies. G. L. c. 66, § 1O (b )(iv); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. Custodians must meet their burden of demonstrating how redacted information is exempt from disclosure. See Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Based on the Department's response, it is uncertain how the claimed statute "specifically or by necessary implication" exempts the requested records from disclosure. See G. L. c. 4, §

Darina Griffin, Esq. SPR19/1168 Page4 June 25, 2019 7(26)(a). Further, it is uncertain whether the documents the Department has submitted to the ANSI and ANAB constitute "copyrighted work" with the meaning of the claimed statute. See 17 U.S.C. § 106. The Department is advised that under the Public Records Law all documentary materials or data, regardless of physical form or characteristics, made or received by the Department is presumed to be a public record. G. L. c. 4, § 7(26). As such any responsive documents in possession of the Department are presumed to be public records. See id. As a result, I find that the Department has not satisfied its burden in responding to this records request. Order Accordingly, the Department is ordered to provide Mr. Quemere 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, ~~ Supervisor of Records cc: Andrew Quemere