Craig P. Shibley v. Department of State Police - Crime Lab (SPR 20202032)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 4, 2020 SPR20/2032 Darina Griffin, Esq. Legal Counsel Department of State Police Crime Laboratory 124 Acton Street Maynard, MA 01754 Dear Attorney Griffin: I have received the petition of Craig Shibley 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 October 2, 2020, Mr. Shibley requested the following records during the timeframe of 2015 to present within the possession of the Department: • All submissions to the Lab requesting forensic tests relating to unsolved murders. Specifically, the dates received, requestor’s name and case file [victim’s name]. If outsourced to a third party, please provide the company’s name; • Testing completion dates related to each request. Previous appeal The requested records were the subject of a previous appeal. See SPR20/2015 Determination of the Supervisor of Records (October 21, 2020). SPR20/2015 was closed after this office was notified that the Department had provided a response to Mr. Shibley on October 19, 2020. Unsatisfied with the Department’s response, Mr. Shibley petitioned this office and this appeal, SPR20/2032, 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). 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 Graffin, Esq. SPR20/2032 Page 2 November 4, 2020 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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Department’s October 19th response In its October 19, 2020 response, the Department asserts that the records are being withheld in their entirety under Exemptions (a), (c), and (f) of the Public Records Law. 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. Under Exemption (a), the Department explains that “. . . pursuant to G.L. c. 38 §4, the respective district attorney shall control the investigation of the death and shall coordinate the

Darina Graffin, Esq. SPR20/2032 Page 3 November 4, 2020 investigation within the jurisdiction of where the death occurred. Particularly, where you are seeking records related to submitted evidence in ‘unsolved murders,’ the Worcester County District Attorney’s Office is [] the appropriate agency to determine which cases are currently considered unsolved. Although in some circumstances the laboratory may be made aware when a suspect is identified, the laboratory records will not necessarily contain this information for all cases considered unsolved homicides by the Worcester District Attorney’s Office between 2015 through present. As a result, please be advised that the Worcester County District Attorney is in possession of any potential responsive materials related to this incident and as such, all record requests should be directed towards their office.” The Department further states that “[t]o the extent that any of laboratory files for homicide investigations where the suspect is listed as unknown, to the extent that Criminalistics and/or DNA testing was conducted, those case files would contain private, personal, potentially medical and biological DNA information. In this instance, you are seeking all of the case files, victim information, testing dates, location of testing and who requested the testing. If Criminalistics and DNA testing was completed in a case, the responsive material will potentially contain DNA testing records from the State Police Crime Lab. Massachusetts General Laws Chapter 22E, § 1 defines DNA records as ‘DNA information that is derived from a DNA sample and DNA analysis and is stored in the state DNA database or in CODIS, including all records pertaining to DNA analysis.’” The Department further explains that “Massachusetts General Laws Chapter 22E, § 1 defines DNA analysis as ‘DNA typing tests that generate numerical identification information and are obtained from a DNA sample’ Therefore, it is clearly established that the records you are requesting are those specifically addressed in Massachusetts General Law Chapter 22E. According to Massachusetts General Laws Chapters 22E, §9, ‘all DNA records collected pursuant to [c. 22E] shall be confidential and shall not be disclosed to any person or agency unless such disclosure shall be authorized by this chapter.’” In his appeal petition, Mr. Shibley states the following: As an aside, [the Department] . . . attempts to make the argument the Crime Lab is not the rightful records custodian of records it possesses even though on its web site it provides this disclaimer: “As Laboratory records are subject to disclosure pursuant to the public records laws . . . the Laboratory may be legally obligated to provide records associated with a submitted case to an external third party.’ The MSPCL no doubt has protocol in place specific to the submission of evidence to include: a Submission Form with dated Chain of Custody as well as identifying “Received From /By”. Such internal documentation is created by the Lab, not the Worcester DAO. In light of the above, it is unclear why the Department is not the proper custodian of the information requested by Mr. Shibley. The Department must clarify this matter.

Darina Graffin, Esq. SPR20/2032 Page 4 November 4, 2020 Mr. Shibley further states: As a point of clarification, I did not seek any related lab files which likely “contain private, personal, potentially medical and biological DNA information”. Furthermore, I did not request “all of the case files and victim information” as stated by [the Department]. As such, [its] argument for exemption (a) is unfounded and not relevant to this discussion. Rather, I am seeking only the date of each request as well as the completion date of each test; each requestor’s name; the identified case file (the victim’s name), NOT the contents therein; and the names of any third party testing site if outsourced by the MSPCL. Based on the foregoing, where Mr. Shibley requests only the date of each request, the completion date of each test, each requestor’s name, the identified case file (the victim’s name), and the names of any third party testing site, it is unclear how the above referenced statutes specifically or by necessary implication permit the Department to withhold the requested information from disclosure. The Department must clarify this issue. Exemption (c) Exemption (c) permits the withholding of: personnel and medical files or information; also any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy G. L. c. 4, § 7(26)(c). First clause of Exemption (c) – medical Exemption (c) contains two distinct and independent clauses, each requiring its own analysis. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 432-33 (1983). The first clause creates a categorical exemption for medical information that relates to an identifiable individual and is of a “personal nature.” Globe Newspaper Co., 388 Mass. at 434. Medical information that is of a personal nature and relates to a specifically named individual is exempt from disclosure. Brogan, 401 Mass. at 308; Globe Newspaper Co., 388 Mass. at 438. Generally, medical information is sufficiently personal to warrant exemption. Id. There is a strong public policy in Massachusetts that favors confidentiality as to medical data about a person’s body. Globe Newspaper Co. v. Chief Medical Examiner, 404 Mass. 132, 135 (1987). Second clause of Exemption (c) – privacy Analysis under the second clause of Exemption (c) is subjective in nature and requires a balancing of the public’s right to know against the relevant privacy interests at stake. Torres v.

Darina Graffin, Esq. SPR20/2032 Page 5 November 4, 2020 Attorney Gen., 391 Mass. 1, 9 (1984); Attorney Gen. v. Assistant Comm’r of Real Property Dep’t, 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case by case basis. This clause does not protect all data relating to specifically named individuals. Rather, there are factors to consider when assessing the weight of the privacy interest at stake: (1) whether disclosure would result in personal embarrassment to an individual of normal sensibilities; (2) whether the materials sought contain intimate details of a highly personal nature; and (3) whether the same information is available from other sources. See People for the Ethical Treatment of Animals (PETA) v. Dep’t of Agric. Res., 477 Mass. 280, 292 (2017). The types of personal information which the second clause of this exemption is designed to protect includes: marital status, paternity, substance abuse, government assistance, family disputes and reputation. Id. at 292 n.13; see also Doe v. Registrar of Motor Vehicles, 26 Mass. ---------------------------- App. Ct. 415, 427 (1988) (holding that a motor vehicle licensee has a privacy interest in disclosure of his social security number). This clause requires a balancing test which provides that where the public interest in obtaining the requested information substantially outweighs the seriousness of any invasion of privacy, the private interest in preventing disclosure must yield. PETA, 477 Mass. at 291. The public has a recognized interest in knowing whether public servants are carrying out their duties in a law-abiding and efficient manner. Id. at 292. Under Exemption (c), the Department posits that “. . . in addition to being exempt by specific statute as stated above, the laboratory case files for unsolved homicide cases are also likely to contain medical information and private and personal details of the homicide. This information is of a highly personal nature, unique to an individual victim as well as potential witness(es). The case files associated with a homicide investigation are likely to contain medical details of the events. Generally, medical information is sufficiently personal to warrant exemption. Globe Newspaper Co. v. Retirement Board, 388 Mass. 427, 432-34 (1983). There is a strong public policy in Massachusetts that favors confidentiality as to medical data about a person’s body. Globe Newspaper Co. v. Chief Medical Examiner, 404 Mass. 132, 135 (1987).” The Department asserts that “. . . publically releasing information that specifically details the occurrence of a homicide inherently impedes on a privacy interest for victims, witnesses, potential suspects and the family members.” Based on the Department’s response, it is uncertain how the date of a request, the completion date of each test, each requestor’s name, the identified case file (the victim’s name), and the names of any third party testing site, constitute medical information that can be withheld under the first clause of Exemption (c). Additionally, it is uncertain how this information constitutes intimate details of a highly personal nature or how disclosure would result in personal embarrassment to an individual of normal sensibilities. Also, the Department did not address whether the information is available from other sources.

Darina Graffin, Esq. SPR20/2032 Page 6 November 4, 2020 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. Under Exemption (f), the Department indicates that “. . . forensic testing case files, victims’ names, dates of evidence submission, dates of testing completion and the name of another forensic service provider in cases of outsourced testing would constitute ‘investigatory materials’ that are exempt from disclosure under the public record law. G.L. c. 4, § 7(26)(f).” Explaining the policy considerations behind this exemption, the Department states that “[w]hereas your request seeks records from unresolved homicide investigations between 2015 and present, inherent in that language is that, you are seeking confidential investigative materials that, if released publically, could compromise the nature of the investigations. The release of details listed in any request or communication and certainly the results should not be made public as they could jeopardize that investigation. In Bougas v. Chief of Police of Lexington, 371 Mass. 59, 63 (1976), the court recognized the importance of protecting such limited class of material in order to protect the public’s interest in effective law enforcement and prosecution.” Based on the Department’s response, it is unclear how the dates, requestor’s name, victim’s name, company’s name, and testing dates of forensic tests constitute investigatory materials. It is additionally uncertain how disclosure of this information “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest” or compromise the Department’s investigatory efforts.

Darina Graffin, Esq. SPR20/2032 Page 7 November 4, 2020 Conclusion Accordingly, the Department is ordered to provide Mr. Shibley with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (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: Craig Shibley