Jordan M. Rice v. Department of State Police - Office of the Chief Legal Counsel (SPR 20200847)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 9, 2020 SPR20/0847 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) SPR20/0709 Determination of the Supervisor of Records (May 13, 2020). In my May 13th determination I found the basis of Mr. Rice’s appeal unclear. Mr. Rice clarified his objections, and SPR20/0847 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 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 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. SPR20/0847 Page 2 June 9, 2020 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 states “[t]he Department has not clarified if the records they claim are exempt under G. L. c. 4, § 7 cl. 26(a), (c) and (f) are responsive to the September 27, 1995 alleged examination and destruction by FBI Agent Randall Fitzwater of the bloody palmprint on a coffee cup at the crime scene.” Further, Mr. Rice contends “the Department has not released any records regarding the September 27, 1995 alleged examination by FBI Agent Randall Fitzwater of the bloody palmprint on a coffee cup at the crime scene. The Department has also not located whether the records from said date existed and were destroyed or, whether they did not initially exist at all.” Based on the Department’s responses, and in light of Mr. Rice’s appeal, it is unclear whether the requested records existed and were destroyed, or whether the records did not initially exist. See G. L. c. 66, §10(a)(ii), (b )(ii). If such records were destroyed, the Department must demonstrate whether it followed proper records retention protocol. The Department must clarify this matter. Conclusion Accordingly, the Department is ordered to provide Mr. Rice with a response in compliance with the Public Records Law, its Access Regulations and this order as soon as practicable. It is preferable to send an electronic copy of each response to this to this office at pre@sec.state.ma.us. Mr. Rice may appeal the substantive nature of the Department’s response within ninety days. See 950 C.M.R. 32.08(1).

Darina Griffin, Esq. SPR20/0847 Page 3 June 9, 2020 Sincerely, Rebecca S. Murray Supervisor of Records cc: Jordan Rice