Jordan M. Rice v. Massachusetts State Police (SPR 20200709)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 13, 2020 SPR20/0709 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 (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Rice requested 17 categories of records related to an identified criminal case. 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); 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); SPR20/0428 Determination of the Supervisor of Records (March 13, 2020). In my March 13th determination I found it was unclear whether additional responsive records exist; specifically, the Department was ordered to provide a response explaining whether the records described in Mr. Rice’s appeal existed and were destroyed, or whether the records did not initially exist. The Department provided said response to Mr. Rice on March 27, 2020. Unsatisfied with the Department’s response, Mr. Rice petitioned this office and appeal SPR20/0709 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, § 10A(d); 950 C.M.R. 32.03(4). “Public records” is broadly defined to include all documentary materials or data, regardless of physical 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. SPR20/0709 Page 2 May 13, 2020 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, § 10(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. The Department’s March 27th response In its March 27th response, the Department asserts, “[a]fter a search of our records, the laboratory has not located any additional responsive materials in our current possession other than that documents that have been provided to you. Additionally, the Department has not located any additional information about whether the materials existed and were destroyed or whether they did not initially exist other than the documents that have been provided to you.” Further, the Department explains, “in response to your request for materials related to a bloody fingerprint on a coffee cup related to laboratory case Number C95-983, the Department has only withheld or redacted responsive materials that fell into the category of personal identifying information of witness or the victim, CORI information and fingerprint information of witnesses, privacy and medical information, and or DNA information, all of which fall under the exemptions outlined in G. L. c. 4, § 7 cl. 26(a), (c) and (f). As noted in my November 29, 2019 and October 10, 2019 correspondence, the Department is also in possession of additional negatives of photographs that appear to have been taken at the scene. Please let me know if you are seeking copies of these.” In his current appeal petition Mr. Rice asks this office to order “the reason they are withholding any and all responsive, records in regards to the blood palm print alleged examination or destruction by Fitzwater on September 27, 1995 filed by state Police Chemist…any and all individuals and/ or Fitzwater.” Mr. Rice also requests this office to order the Department to state “[t]hey possess no responsive records in regard to the bloody palm print alleged examination or destruction by Fitzwater…” Where the Department has confirmed it does not possess additional records responsive to his request, I find the basis of Mr. Rice’s appeal is unclear. Mr. Rice is advised, under the Public Records Law the Office 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, § 10(a)(ii). Further, it is unclear whether Mr. Rice objects to the Department’s exemption claims. As a result, Mr. Rice has not adequately described the type of action he seeks from this office. If Mr.

Darina Griffin, Esq. SPR20/0709 Page 3 May 13, 2020 Rice is objecting to the Department’s exemption claims, he must clarify to which portions of the Department’s claims under Exemption (a), (c), and (f) he objects. Mr. Rice is reminded that all petitions for appeal “shall specifically describe the nature of the requestor’s objections to the response or failure to timely respond.” 950 C.M.R. 32.08(l)(f). Conclusion Accordingly, Mr. Rice must describe his specific objections to the Department’s March 27th response. Sincerely, Rebecca S. Murray Supervisor of Records cc: Jordan Rice