Craig P. Shibley v. Department of State Police - Crime Lab (SPR 20202306)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 9, 2020 SPR20/2306 Darina Griffin, Esq. Massachusetts 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 (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Shibley requested “documents submitted to the [Massachusetts State Police Crime Lab] on behalf of” four identified state troopers, including: 1. “The Lab’s LIMS documents relative to all evidence tested and reported out in each case; 2. The Department’s Chain of Custody documents relative to the evidence submitted in each case by the five aforementioned individuals; 3. All related Evidence Submission Forms filed.” The Department provided a response on November 9, 2020, withholding responsive records pursuant to Exemptions (a), (c), and (f) of the Public Records Law. Unsatisfied with the Department’s response, Mr. Shibley petitioned this office and this appeal, SPR20/2306, 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. 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. SPR20/2306 Page 2 December 9, 2020 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 November 9, 2020 response In its November 9, 2020 response, the Department indicates that it is withholding responsive records under Exemptions (a), (c), and (f). The Department states that “the documents you are seeking inherently contain private, personal, medical, investigatory, and potentially CORI and DNA information.” The Department states that “dissemination of CORI and DNA information is statutorily protected…” and “public dissemination of the reports related to sexual assault cases is explicitly prohibited pursuant to G. L. c. 41, § 97D.” The Department additionally states that “[a]ll of this information falls squarely within the statutory exemptions contained in the public records law and the public interest is not served by public disclosure of this information.” Based on the Department’s response, I find it has not met its burden in responding to this request. Specifically, it is unclear what particular records the Department possesses and intends to withhold. The Department must clarify this matter. Additionally, although it appears that the requested records may contain information exempt from disclosure pursuant to Exemptions (a), (c), and (f), it is unclear if these exemptions permit withholding the records in their entirety. 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). I find the Department must provide additional information regarding this matter. In his appeal petition, Mr. Shibley states that he is seeking records related a homicide investigation and not any sexual assault investigations, and therefore the Department can focus only on homicide investigations. This office encourages the requestor and the Department to continue to communication to facilitate providing Mr. Shibley with any nonexempt records that he seeks. See G. L. c. 66, § 10(b)(vii) (an agency or municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency or municipality to produce records sought more efficiently and affordably). Conclusion Accordingly, the Department is ordered to provide Mr. Shibley with a supplemental response to this request, to be 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.

Darina Griffin, Esq. SPR20/2306 Page 3 December 9, 2020 Sincerely, Rebecca S. Murray Supervisor of Records cc: Craig Shibley