Jenn Bussell v. Department of State Police - Crime Lab (SPR 20201477)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 10, 2020 SPR20/1477 Samuel A. Miller, Esq. Massachusetts State Police Crime Lab 124 Acton Street Maynard, MA 01754 Dear Attorney Miller: I have received the petition of Jenn Bussell appealing the response of the Massachusetts State Police Crime Lab (Crime Lab) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on July 2, 2020, Ms. Bussell requested the records relating to the October 2002 homicide of a named individual as follows: “• Crime scene photos and list of evidence taken at [an identified address] Winchester MA by the Crime Scene Response Unit including but not limited to latent fingerprints, footwear or tire tracks, hair samples (human, canine, feline, etc.) • List of evidence submitted to the Criminalistics Unit or the DNA Unit including but not limited to latent fingerprints, footwear or tire tracks, hair samples (human, canine, feline, etc.) • List of CODIS searches that were run against DNA evidence collected from the crime scene, and any results generated from those searches.” 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) (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…”); 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 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

Samuel A. Miller, Esq. SPR20/1477 Page 2 September 10, 2020 burden of establishing the applicability of an exemption). The Crime Lab’s July 28th response In its July 28th response, the Crime Lab stated, “the Department has identified a number of documents and photographs that would be responsive to your request.” The Crime Lab cited Exemption (f) of the Public Records Law to withhold the requested records. Exemption (f) Exemption (f) permits the withholding of: investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest. G. L. c. 4, § 7 (26)(f). A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 371 Mass 59, 62 (1976). Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Attorney Gen., 52 Mass. App. Ct. 244, 248 (2001); Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 290 n.18 (1979). Exemption (f) invites a "case-by case consideration" of whether disclosure "would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest." See Reinstein, 378 Mass. at 289-290. In its July 28th response, the Crime Lab stated that “this is still an open investigation that is being actively pursued by the Middlesex District Attorney’s Office. Because this is an open and active criminal investigation, the materials you are seeking constitute evidence which is barred from disclosure under the investigatory exemption of the Public Records Law as ‘investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.’ M.G. L. c. 4, § 7(26)(f). Disclosure of these materials is presumptively prejudicial to effective law enforcement and prosecution as it may prematurely reveal investigatory details about the Commonwealth’s case if this investigation results in criminal proceedings. See Reinstein v. Police Commissioner of Boston, 378 Mass. 281, 290 n.18 (1979), and Continental Assurance Co. v. Diori-Vlougis, 51 Mass. App. Ct. 403, 411-412 (2001).”

Samuel A. Miller, Esq. SPR20/1477 Page 3 September 10, 2020 While the Crime Lab claims that disclosing investigatory materials related to the requested incident may harm ongoing investigation efforts, the Crime Lab needs to provide additional information to demonstrate how the investigation is ongoing and not yet complete. The Crime Lab does not describe how the disclosure of the information would reveal confidential investigative techniques nor how the requested records are part of the investigation. Further, the Crime Lab did not demonstrate how disclosure of the responsive records or segregable portions thereof “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest” as required to withhold records under Exemption (f). As a matter of course, witness provided information is essential to efficient and effective law enforcement. This exemption is intended to allow investigative officials to provide an assurance of confidentiality to private citizens so that they will speak openly and voluntarily about matters. Bougas 371 Mass at 62. Any information contained in a witness statement, which if disclosed would create a grave risk of directly or indirectly identifying the voluntary witness is subject to withholding Globe Newspaper Co. v. Boston Retirement Board, 388 Mass. 427, 438 (1983). Therefore, Exemption (f) will allow the withholding of the name and identifying details of victims, complainants and voluntary witnesses, and where the individuals can be indirectly identified even with redaction. However, it is uncertain why the Crime Lab cannot redact identifying information from the responsive records to preserve anonymity or confidentiality. 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). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Order Accordingly, the Crime Lab is ordered to provide Ms. Bussell with a response to the request, 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: Jenn Bussell