Dennis Shedd v. Department of State Police - Crime Lab (SPR 20211063)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 10, 2021 SPR21/1063 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 Attorney Dennis Shedd appealing the response of the Massachusetts 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). On March 22, 2021, Attorney Shedd requested “one copy of all Crime Scene Services Section reports prepared in the course of the investigation of the murder of [an identified individual] in Billerica on July 7, 2012, State Police case # 2012-110-0192, Crime Lab case #12-09339.” The Department provided a response on March 31, 2021. Unsatisfied with the Department’s response, Attorney Shedd petitioned this office and SPR21/1063 was opened as a result. Purpose of request; identity of requestor 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, Attorney Shedd’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). See also 950 C.M.R. 32.08(1)(a) (the administrative appeal process “shall not apply to records in which an individual, or a representative of the individual, has a unique right of access to the record through statutory, regulatory, judicial or other applicable means”). As 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. SPR21/1063 Page 2 May 10, 2021 such, Attorney Shedd may wish to consider another means of seeking to obtain any existing responsive records. 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 March 31st response In its March 31st response, the Department states it “has determined that there are records which are responsive to your public records request. However, such records are in the possession, custody and control of the Middlesex District Attorney's office. The Department has communicated your public records request to the Middlesex DA's office, which has indicated to the Department that they will respond to it.” In a response sent to this office on May 10, 2021, the Department reiterated “there are records which are responsive to the public records request. However, the Department asserts that such records are in the possession, custody and control of the Middlesex District Attorney’s office.” Attorney Shedd contends “the lab acknowledges that it has documents responsive to the request and it does not claim that any of the exemptions set forth in M.G.L. c. 4, §7(26) apply...[s]imply because one agency is in charge of a matter does not mean another agency is no longer the custodian of records which it possesses itself. If two agencies possess the same records, they are disclosable by either subject to valid exemptions.” Records in existence The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). Despite the Department’s responses, I find it is unclear whether responsive records exist, and if they do, why they have not been provided. The Department must explain whether responsive records existed and were destroyed, or whether the records did not initially exist. See G. L. c. 66, § 10(a)(ii), (b)(ii).

Darina Griffin, Esq. SPR21/1063 Page 3 May 10, 2021 Conclusion Accordingly, the Department is ordered to provide Attorney Shedd 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: Dennis Shedd, Esq.