Jordan M. Rice v. Department of State Police - Crime Lab (SPR 20201763)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 5, 2020 SPR20/1763 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, on August 3, 2020, Mr. Rice requested 22 categories of records related to an identified criminal case; including several categories of records related to “the [b]loody [p]alm [p]rint found on a coffee cup at the crime scene.” The request also included “[a]ny and all affidavits, data, documents, faxes, files, information, papers and/or reports submitted by any and all Massachusetts State Police employees…” related to the identified criminal case. The Department responded on September 9, 2020, which indicated that any reports are being withheld pursuant as Criminal Offender Record Information (CORI). Unsatisfied with the Department’s response, Mr. Rice petitioned this office, and SPR20/1763 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 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. 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. SPR20/1763 Page 2 October 5, 2020 The Department’s September 9th response In its September 9th response, the Department asserts, “[t]he vast majority of the materials you are seeking in this August 3, 2020 request have already been resolved by virtue of your prior request, the Departments previous responses and numerous appeals to the Supervisor of Records which have all been resolved. Please see SPR19/1087, SPR19/1398, SPR19/1898, SPR20/0107, SPR20/428, SPR20/0709, SPR20/847and SPR20/1139… [i]t appears that the only additional materials you are seeking in this present request are any and all papers by Detective Joseph V. Mason related to the index offense and any and all papers held in the custody of the Massachusetts Department of State Police.” The Department states it is “…withholding any and all reports drafted by Detective Joseph Mason or any other State Police reports in its custody as it is protected by Criminal Offender Record Information (CORI) laws. G.L. c. 6, §§ 167, 172, 178. Information about identifiable individuals related to the nature and disposition of a criminal charge is generally exempted from disclosure under the statute on CORI. G.L. c. 6, §§ 167, 172, 178.” Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7(26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public’s right to inspect records under the Public Records Law is restricted. See Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either “shall not be a public record,” “shall be kept confidential” or “shall not be subject to the disclosure provision of the Public Records Law.” The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. The definition of CORI is as follows:

Darina Griffin, Esq. SPR20/1763 Page 3 October 5, 2020 [R]ecords and data in any communicable form compiled by a Massachusetts criminal justice agency which concern an identifiable individual and relate to the nature or disposition of a criminal charge, an arrest, a pre-trial proceeding, other judicial proceedings, previous hearings conducted pursuant to section 58A of chapter 276 where the defendant was detained prior to trial or released with conditions under subsection (2) of section 58A of chapter 276, sentencing, incarceration, rehabilitation, or release. Such information shall be restricted to information recorded in criminal proceedings that are not dismissed before arraignment. Criminal offender record information shall not include evaluative information, statistical and analytical reports and files in which individuals are not directly or indirectly identifiable, or intelligence information . . . Criminal offender record information shall not include information concerning any offenses which are not punishable by incarceration G. L. c. 6, § 167 (emphasis added). The Department explains “[t]he Massachusetts State Police incident reports and investigative reports are CORI protected because the State Police Department is a criminal justice agency, who compiled all of the records, the records involve an identifiable individual, and they relate to the nature of an arrest, criminal charges, and court proceedings. This police reports are replete with nonserverable CORI, matter correlated with defendant specific information, and cannot be disclosed.” In his current appeal petition, Mr. Rice states “I object to each blanket statutory exemption again employed by Atty.Griffin in this said request.” Mr. Rice requests this office “order Atty. Griffin to identify any and all responsive records to this Public Records Request · within the possession of the MSP and how each responsive record identified relates to each Statutory Exemption…” In light of the Department’s response, I find it is unclear how the requested reports constitute CORI. G. L.c. 66, § 10 (a). Specifically, it is unclear how they are “information recorded in criminal proceedings that are not dismissed before arraignment,” as described above. G. L. c. 6, § 167. Consequently, the Department has not met its burden to withhold the requested records under the CORI Act. Unique right of access; purpose 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

Darina Griffin, Esq. SPR20/1763 Page 4 October 5, 2020 (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 Court has held that while a party’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 September 9th response the Department contends that Mr. Rice has a unique right of access to the records where he is “seeking records related to a case that resulted in [his] conviction.” The Department cites the Massachusetts Rules of Criminal Procedure, as well as 950 C.M.R. 32.08(1)(a) in support of its claim. Despite the Department’s response, it is 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. Conclusion Accordingly, the Department is ordered to provide Mr. Rice with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten 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