Craig P. Shibley v. Department of State Police - Crime Lab (SPR 20202274)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 7, 2020 SPR20/2274 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 appeals The requested records were the subject of previous appeals. See SPR20/2015 Determination of the Supervisor of Records (October 21, 2020) and SPR20/2032 Determination of the Supervisor of Records (November 4, 2020). In my November 4th determination, I found that the Department had not met its burden to withhold the requested information under Exemptions (a), (c), and (f) of the Public Records Law. Accordingly, I ordered the Department to provide Mr. Shibley with a response. Following the November 4th determination, the Department provided a response on November 19, 2020. Unsatisfied with the Department’s response, Mr. Shibley petitioned this office and this appeal, SPR20/2274, 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 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. SPR20/2274 Page 2 December 7, 2020 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. 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 November 19th response In its November 19, 2020 response, the Department reiterates that the requested information are exempt from disclosure 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

Darina Griffin, Esq. SPR20/2274 Page 3 December 7, 2020 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 asserts that “[r]evealing information such as items of evidence submitted for forensic testing, the dates of that testing, the investigator who requested the testing, and whether an outside entity completed that testing for an unsolved homicide case encroaches on statutorily protected information. . . . In circumstances where DNA testing was complete, the revelation of any of the information you are seeking interferes with the statutory protection Massachusetts General Laws Chapter 22E, §9. See Massachusetts General Laws Chapter 4, §7, cl. 26(a).” The statute, G. L. c 22E, §9, provides in relevant part: All DNA records collected pursuant to this chapter shall be confidential and shall not be disclosed to any person or agency unless such disclosure shall be authorized by this chapter. DNA records shall not be stored in a criminal offender record information system operated by the department of criminal justice information services pursuant to sections 167 to 178, inclusive, of chapter 6. G. L. c 22E, §9. Based on the Department’s response, it is unclear how the above statute specifically or by necessary implication permits the Department to withhold the requested information from disclosure. It is additionally uncertain whether DNA testing was complete in all the responsive case files. 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,

Darina Griffin, Esq. SPR20/2274 Page 4 December 7, 2020 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. 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; - se - e -al-so- -D-o-e -v.- R-e-g-is-tr-a-r -of- M--o-to-r -V-e-hi-c-le-s, 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 asserts that “. . . publically revealing the information you are seeking also infringes upon not only the privacy rights of a victim or their family, but may also reveal medical information that is not a public record. Massachusetts General Laws Chapter 4, §7, cl. 26(c). The mere fact that a particular forensic test was or was not completed may reveal medical information about an individual. It is already well established that 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).” Based on the Department’s response, it is uncertain how disclosing 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, may reveal medical information that can be withheld under the first clause of Exemption (c). Neither is it clear from the Department’s

Darina Griffin, Esq. SPR20/2274 Page 5 December 7, 2020 response, how disclosing the fact that a forensic test was or was not completed would reveal medical information. Additionally, it remains unclear 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, nor provide any information regarding the balancing test set-out in the second clause of Exemption (c) which examines whether the public interest in obtaining the requested information substantially outweighs the seriousness of any invasion of privacy. See PETA, at 291-92. 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 posits that “. . . public release of forensic testing case information, victims’ names, dates of evidence submission, dates of testing completion and the name of other forensic service providers 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 the exemption, the Department states that “[n]either you, nor the Department nor the Supervisor of Records should be in a position to unilaterally determine what facts related to an unsolved homicide; whether they be significant or minor, will be the facts that could hinder the investigation, jeopardize or prejudice the resolution of the case and prevent the appropriate administration of justice. The legislature has placed the statutory responsibility to control the investigation of a homicide case within the authority of the District Attorney’s Office. No other entity should second-guess the necessity to keep certain information outside of public view while the investigation is ongoing. G.L. c. 38 §4[.]”

Darina Griffin, Esq. SPR20/2274 Page 6 December 7, 2020 Despite the Department’s response, it remains unclear how the dates, requestor’s name, victim’s name, company’s name, and testing dates of forensic tests constitute investigatory materials, or how disclosure “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. 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