Jordan M. Rice v. Department of State Police - Crime Lab (SPR 20202195)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 24, 2020 SPR20/2195 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. Previous appeal This request was the subject of previous appeals. See SPR19/1763 Determination of the Supervisor of Records (October 5, 2020). In my October 5th determination I found it was unclear how the requested reports constitute criminal record offender information (CORI). G. L.c. 66, § 10 (a). Specifically, it was unclear how they are “information recorded in criminal proceedings that are not dismissed before arraignment,” as defined in G. L. c. 6, § 167. Further, I found it was also unclear how Mr. Rice has a unique right of access to the requested information through statutory, regulatory, judicial or other applicable means. The Department was 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. The Department provided said response on October 20, 2020. Unsatisfied with the Department’s response, Mr. Rice petitioned this office, and SPR20/2195 was opened as a result. 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. SPR20/2195 Page 2 November 24, 2020 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. The Department’s October 20th response In its October 20th response, the Department indicates “[a]fter a search of our records, the laboratory has not located any affidavits in its possession. With respect to police reports, aside from any police reports that the Department has already provided to you in its response sent on November 20, 2019, the Department is withholding any and all reports drafted by Detective Joseph Mason or any other State Police Troopers, as it is protected by Criminal Offender Record Information (CORI) laws. G.L.'c. 6, §§ 167, 172, 178.” The Department further indicates “…these reports also contain additional information that is exempted from public disclosure including: personal information (G.L. c. 4, § 7(26)(c)), investigatory material (G.L. c. 4, § ·7(26)(f)), names and identifying information of civilian witnesses or other suspects (G.L. c. 4, § 7(26)(c)), and medical information (G.L. c. 4, § 7(26)(f)).” 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).

Darina Griffin, Esq. SPR20/2195 Page 3 November 24, 2020 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: [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 reports and other investigative reports made during the course of the investigation and criminal prosecution of a case 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 non-severable CORI, matter correlated with defendant specific information, and cannot be disclosed. As such, the reports are CORI and are exempt from the definition of public records. G.L. c. 4, § 7, cl. 26 (a) (‘specifically or by necessary implication exempted from disclosure by statute’).” Despite the Department’s responses, I find it remains unclear how the requested reports constitute CORI. G. L.c. 66, § 10 (a). Specifically, it remains 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.

Darina Griffin, Esq. SPR20/2195 Page 4 November 24, 2020 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, relevant to this determination, creates a categorical exemption for personnel and medical information that relates to an identifiable individual and is of a “personal nature.” Id. at 434. Medical information that is of a personal nature and relates to a specifically named individual is exempt from disclosure. Brogan v. School Comm. of Westport, 401 Mass. 306, 308 (1987); Globe Newspaper Co., 388 Mass. at 438. Generally, medical information is sufficiently personal to warrant exemption. Globe Newspaper Co., 388 Mass. at 432-34. 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. 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).

Darina Griffin, Esq. SPR20/2195 Page 5 November 24, 2020 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. I find that to the extent that records contain medical information related to an identifiable individual, the Department may withhold such portions from the responsive records. However, the Department has not met its burden of specificity to withhold the responsive records under Exemption (c) in their entirety. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). 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 289-90. Although the Department may withhold identifying information of voluntary witnesses, I find the Department has not demonstrated how disclosure of the records, even in a redacted format, “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). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a).

Darina Griffin, Esq. SPR20/2195 Page 6 November 24, 2020 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 (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 October 20th response, the Department states “…the CORI statute permits disclosure of CORI in particular situations, in most instances through the department of Criminal Justice Information Services (CJIS). G.L. C. 6, §§ 167A, 172 (a). Regulating the process of producing CORI records furthers the goal of protecting individual's private information… [i]n this situation, where the CORI laws provide a statutory process for requesting and obtaining CORI information, you a unique right of access to this information through CJIS. Therefore, these records are not proper subject of a public records request, and should not be disclosed in a public records request or pursuant to an appeal decision by the Supervisor of Records in order to avoid the risk of unlawful dissemination of CORI material in violation G.L. c. 6, § l 78 ½ .” Despite the Department’s response, it remains uncertain how Mr. Rice has a unique right of access to the requested information through statutory, regulatory, judicial or other applicable means. Conclusion In light of the above, I find the Department must provide Mr. Rice with segregable portions of the records at issue in this appeal or provide additional information regarding how these records may be withheld in their entirety. See G. L. c. 66, § 10(a). Accordingly, the Department is ordered to provide Mr. Rice with a response to the request, provided in a manner

Darina Griffin, Esq. SPR20/2195 Page 7 November 24, 2020 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