Jordan M. Rice v. Department of State Police - Crime Lab (SPR 20191898)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supen•isor of Records October 1, 2019 SPR19/1898 Darina Griffin, Esq. Depaiiment of State Police Crime Lab 124 Acton Street Maynard, MA 01754 Dear Attorney Griffin: I have received the petition of Jordan Rice 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. Rice requested 17 categories of records related to an identified criminal case. The Department responded to his request indicating it is withholding the responsive records pursuant to Exemptions (a), (c), and (f) of the Public Records Law. G. L. c. 4, § 7(26)(a), (c), (f). Previous appeals This request was the subject of previous appeals. See SPR19/1087 Determination of the Supervisor of Records (June 13, 2019); SPR19/1398 Determination of the Supervisor of Records (July 30, 2019). In my July 30th determination I ordered the Department to provide Mr. Rice with a response to the request, provided in a manner consistent with the order, the Public Records Law and its Regulations. The Depa1iment responded on August 13, 2019. Mr. Rice appealed and SPRl 9/1898 was opened as a result. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all govermnental records are public records. G. L. c. 66, § 1O A( d); 950 C.M.R. 32.03(4 ). "Public records" is broadly defined to include all documentary 1naterials 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). 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. SPR19/1898 Page 2 October 1, 2019 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 p01iion of the responsive record. Current appeal The Department's August 13th response provides additional information in support of its denial of access to records. Unique right of access; pwpose of request Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Mr. Rice's purpose in making the request has no bearing on the public status of any existing responsive records. It should be noted that the discovery process and the Public Records Law are two distinct and independent avenues for gaining access to records. The Massachusetts Supreme Judicial Comi has held that while a paiiy's access to records may be limited by the Public Records Law, this may not preclude obtaining the records through discovery. Commonwealth v. Wanis, 426 Mass. 639 (1998). As such, Mr. Rice may wish to consider another means of seeking to obtain any existing responsive records. In its August 13th response the Department contends that " ... that the appeal process you have initiated to the Supervisor of Public Records is inappropriate because as the defendant that is the subject of the records, you have a unique right of access to the documents you are seeking." The Department cites the Massachusetts Rules of Professional Conduct, Rule 1.15 A(b) in supp01i of its position that Mr. Rice may obtain the records from his attorneys. The Depaiiment also references Mass. R. Crim. P. 30(c)(4) to claim that Mr. Rice may obtain records through post-conviction discovery. Despite the Department's response, it remains unclear how Mr. Rice has a unique right of access to the requested information through statutory, regulatory, judicial or other applicable means. Specifically, it is unclear how the potential for post-conviction discovery, or the fact that Mr. Rice previously received the records and/or has the potential ability to obtain the records from an attorney, constitutes having a unique right of access through the judicial process.

Darina Griffin, Esq. SPRl 9/1898 Page 3 October 1, 2019 Burden ofs pecificity; segregable portions Pursuant to the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. G. L. c. 66, § 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 ... "); see also Globe Newspaper Co. v. Police Comm'r,419 Mass. 852,857 (1995); Flatley, 419 Mass. at 511. In its response, the Department lists several responsive records in its possession; however, it contends that these records may be withheld in their entirety under Exemptions (a), (c), and (f) of the Public Records Law. In particular, you note, in pmi, that "[t]he Depmiment has withheld these materials in their entirety because it could not meaningfully redact the exempted materials and still provide relevant responsive documents." Despite the Department's August 13th response, and for the reasons articulated in my July 301 h determination, it remains unclear why the Department is withholding the responsive records ' in their entirety. Any non-exempt, segregable pmiion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10( a). In camera review In his appeal petition Mr. Rice references several of the records listed by the Department that he seeks. In order to facilitate a determination as to the applicability of the Depmiment's exemption claims justifying withholding the records in their entirety, the Department must provide this office with an unredacted copy of a representative sample of the responsive records at issue for an in camera review. The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Massachusetts Comm'n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. 950 C.M.R. 32.08(4)(c). This office has a long history ofcooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. l'.Jpon a determination of the public record status, records reviewed in

Darina Griffin, Esq. SPR19/1898 Page 4 October 1, 2019 camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would ce1iainly affect our credibility within the legal community. Conclusion Accordingly, the Department is ordered to provide this office with an unredacted copy of a representative sample of the responsive records at issue for in camera review without delay. The Depa1iment may provide this office with an explanation of its position regarding the applicability of an exemption to the responsive records. Please be advised that, unlike the materials provided for in camera review, any such additional correspondence would be placed in the file for this appeal and would be subject to public disclosure as a public record. Sincerely, Rebecca S. Murray Supervisor of Records cc: Jordan Rice