Craig P. Shibley v. Department of State Police - Crime Lab (SPR 20202605)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 8, 2021 SPR20/2605 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); SPR20/2032 Determination of the Supervisor of Records (November 4, 2020) and SPR20/2274 Determination of the Supervisor of Records (December 7, 2020). In my December 7th determination, I found the Department had not met its burden to withhold the requested information under Exemptions (a), (c), and (f) of the Public Records Law. Following the December 7th determination, the Department provided a response on December 21, 2020. Unsatisfied with the Department’s response, Mr. Shibley petitioned this office and this appeal, SPR20/2605, 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. SPR20/2605 Page 2 January 8, 2011 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 December 21st response In its December 21, 2020 response, the Department continues to assert that the records are exempt from disclosure pursuant to 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

Darina Griffin, Esq. SPR20/2605 Page 3 January 8, 2011 access to the listed individuals or entities. Under Exemption (a), the Department states “[i]n 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. . . . In this instance, because you are seeking information related to forensic testing completed at the laboratory related to homicide investigations, there is a portion of cases that contain DNA testing records. . . . These records are specifically exempt from public disclosure under the provisions of MGL c. 22E, §9 which states that ‘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.’” Exemption (c) Exemption (c) permits the withholding of: personnel and medical files or information and any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy; provided, however, that this subclause shall not apply to records related to a law enforcement misconduct investigation. G. L. c. 4, § 7(26)(c). Analysis under 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 exemption 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 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 exemption 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

Darina Griffin, Esq. SPR20/2605 Page 4 January 8, 2011 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. . . . 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).” 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 asserts 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. . . . Here, the records you seek would involve the premature disclosure of details of the Commonwealths case as they are materials related to forensic testing either at the Massachusetts State Police Crime Laboratory or another outside laboratory in connection with an ongoing homicide investigation.” The Department further states that “[t]he 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. SPR20/2605 Page 5 January 8, 2011 In camera inspection In order to facilitate a determination as to the applicability of the exemption claims made by the Department to withhold responsive records, in their entirety, the Department must provide this office with an un-redacted copy of a representative sample of the responsive records for in camera inspection. See 950 C.M.R. 32.08(4). After I complete my review of the records, I will return the records to the Department’s custody and issue an opinion on the public or exempt nature of the records. The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Mass. Comm’n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. Order Accordingly, the Department is ordered to provide this office with an un-redacted copy of the responsive records for in camera inspection without delay. Sincerely, Rebecca S. Murray Supervisor of Records cc: Craig Shibley