Jordan M. Rice v. Department of State Police - Crime Lab (SPR 20200428)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords March 13, 2020 SPR20/0428 Darina Griffin, Esq. Department 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 (Depaiiment) to a request for public records. G. L. c. 66, § 1Q A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Rice requested 17 categories ofrecords related to an identified criminal case. Previous appeals This request was the subject of previous appeals. See SPRl 9/1087 Determination of the Supervisor of Records (June 13, 2019); SPR19/1398 Determination of the Supervisor of Records (July 30, 2019); SPR19/1898 Determinations of the Supervisor of Records (October 1, 2019; November 5, 2019); SPR20/0107 Determination of the Supervisor of Records (February 3, 2020). In my February 3rd determination I found the basis of Mr. Rice's appeal to be unclear. I indicated that Mr. Rice may resubmit an appeal to this office once the appeal has been clarified. Mr. Rice provided a letter to this office regarding the nature of his objections and SPR20/0428 was opened as a result. 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. 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. SPR20/0428 Page 2 March 13, 2020 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. Current appeal The Department initially responded to the request by 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). zoth The Department's November response included responsive records with portions redacted pursuant Exemptions (a), (c), and (f). In my February 3rd determination I found it was unclear whether Mr. Rice believed more records existed, nor was it certain whether he objected to the Department's exemption claims. Further, although Mr. Rice referenced the Office of the Attorney General (AGO), he did not sufficiently described the basis for referring this matter to the AGO for enforcement. In his most recent letter to this office, Mr. Rice indicates he believes additional responsive records may exist and appears to object to the withholding of these responsive records. The Department's November 201 response 1, In its November 201 h response the Department provided certain responsive records with portions redacted under Exemptions (a), (c), and (f). You provide a list of responsive records and explain that " ... the Department redacted materials that are exempted from public disclosure under G. L. c. 4, § 7 cl. 26(a), (c) and (f) as described in more detail below because they contain names and identifying information of civilian witnesses, DNA information as well as materials gathered during the investigation." The Department characterizes the redactions as "Personal identifying information, fingerprints and palm prints of others," "DNA, blood testing and medical information," and "CORI." Existence ofa dditional responsive records; records withheld in their entirety In his appeal petition Mr. Rice references testimony from a trial in support of his position that the records he received are not satisfactory and that additional records may exist. He asks this office to, in paii, "1) release any and all ACTUAL Public Records from September 27, 1995, in regards to the bloody palm print found on the coffee cup which surely exist based upon the trial testimony of Beehan!" These records should be responsive pursuant to paragraph no(s). 5,11,12,13,14 &, 15 as clearly set forth in Mr. Rice's original Public Records Request." Mr. Rice also asks that the Department be required to "2) demonstrate the application of [an] exemption in order to withhold the September 27, 1995[] records."

Darina Griffin, Esq. SPR20/0428 Page 3 March 13, 2020 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). In light of the issues raised in Mr. Rice's appeal regarding the existence of responsive records, and despite the Department's responses, I find it is unclear whether additional responsive records exist; specifically, the Department must explain whether the records described in Mr. Rice's appeal existed and were destroyed, or whether the records did not initially exist. See G. L. c. 66, § lO(a)(ii), (b)(ii). If any responsive records are being withheld in their entirety, the Department must claim an exemption and provide specific reasons as to how it applies. See G. L. c. 66, § IO(b)(iv). Conclusion Accordingly, the Department is ordered to provide Mr. Rice with a response provided in a manner consistent with this order, the Public Records Law, and its Regulations within 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, Rebecca S. Murray Supervisor of Records cc: Jordan Rice