Adam Bradley v. Department of State Police - Crime Lab (SPR 20212712)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 22, 2021 SPR21/2712 Darina Griffin, Esq. Department of State Police Crime Laboratory 124 Acton Street Maynard, MA 01754 Dear Attorney Griffin: On October 15, 2021, I received your petition on behalf of the Department of State Police Crime Lab (Department) seeking permission to charge for time spent segregating or redacting responsive records. G. L. c. 66, § 10(d)(iv). As required by law, it is my understanding that the Department furnished a copy of this petition to the requestor. G. L. c. 66, § 10(d)(iv). In a letter dated September 30, 2021, Adam Bradley requested various records concerning the Department. Fee Estimates An agency may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.05) per page may be assessed for a black and white single or double-sided photocopy of a public record. G. L. c. 66, § 10(d)(i). Agencies may not assess a fee for the first four (4) hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested. G. L. c. 66, § 10(d)(ii). Where appropriate, agencies may include as part of the fee an hourly rate equal to or less than the hourly rate attributed to the lowest paid employee who has the necessary skill required to search for, compile, segregate, redact or reproduce a record requested, but the fee shall not be more than $25 per hour. Id. A fee shall not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv). See G. L. c. 66, § 10(d)(ii); 950 C.M.R. 32.06(4). 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. SPR21/2712 Page 2 October 22, 2021 Current Petition In its October 15th petition, the Department seeks “…approval to assess fees associated with responding to a public records request submitted by Adam Bradley on September 30, 2021.” The Department “…has determined that a thorough review of the potentially responsive records will be required in order to segregate and redact the materials which is exempted pursuant to the public records law. Specifically, the Department will have to review approximately 2635 pages of documents, approximately 806 photographs and 2 videos, one which is approximately 7 minutes and 17 seconds long and another which is approximately 5 minutes and 1 second long, and conduct an evaluation of what materials must be redacted pursuant to the law.” The Department contends that “[t]he records in question contain privileged or exempt information such as Criminal Offender Record Information related to other co-defendants, investigatory materials, private information, and witness names and statements. These categories of documents are specifically exempt pursuant to G.L. c. 4, §7, cl. 26 (a), (c) and (f), and are not subject to public disclosure. Accordingly, the information must be redacted from the records pursuant to law.” The Department cites Exemption (a) noting that “[t]he laboratory files requested here include records and data compiled by a Massachusetts criminal justice agency, which concern identifiable individuals and relate to the nature or disposition of a criminal charge, an arrest, a pre-trial proceeding, and other judicial proceedings. See 803 CMR 2.00 and G.L. ch. 6, § 167. Since the instant request relates to criminal cases that name multiple co-defendants, the laboratory case file contains names and other Criminal Offender Record Information (‘CORI’) that is statutorily protected from disclosure. The information falls squarely within the G.L. c. 4, §7, cl. 26 (a) exemption because releasing the requested information would violate G. L. c. 6, § 172, the CORI statute. This CORI information is protected from disclosure and therefore will require redaction. The requester’s personal interest in and status as the subject of the records offers the requester no greater right of access than any other person in the public realm. See G. L. c. 66, § 10(a)(public records are to be provided to ‘any person’). See, e.g., SPR17/786.” Citing Exemption (c) the Department states, “…a perfunctory search reveals that there is a criminalistics file and a DNA files associated with the case, which contains criminalistics, and genetic/ DNA testing information of blood and biological fluids. Where this information is inherently medical and private, these records would be subject to redaction for these materials as well pursuant to G.L. c. 4, § 7, cl. 26 (c). See Viriyahiranpaiboon v. Department of State Police, 52 Mass.App.Ct. 843 (2001). Along with the statutorily protected CORI information and the private and medical serological/DNA information, the documents Mr. Bradley is seeking also contain witness information and statements. These documents would also have to be redacted pursuant to the privacy exemption within G.L. c. 4, §7, cl. 26 (c) and investigatory exemption within G.L. c. 4, §7, cl. 26 (f).”

Darina Griffin, Esq. SPR21/2712 Page 3 October 22, 2021 The Department adds that “…the responsive case files contain information that is exempt pursuant to the investigatory exemption…G.L. c. 4, §7, cl. 26 (f) specifically exempts from public disclosure 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.” The Department contends that “[i]t is not in the public interest to disseminate this information in light of the fact that the requested information contains case information for a case that are still pending or that have not exhausted all appellate remedies. Particularly, where [an identified individual’s] criminal case appears to be the subject of a pending appeal, the Department asserts that the investigatory exemption.” In light of the above, I find the Department has met its burden to explain how, given the nature of the responsive records, the request could not prudently be completed without redaction or segregation. See G. L. c. 66, § 10(d)(iv). Conclusion Accordingly, it is my determination that given the nature of the requested records and the explanation in its petition, the Department is permitted to charge for time spent segregating and redacting the requested records. I encourage the parties to communicate further to enable the Department to provide records in an efficient and affordable manner. Please note the requestor has the right to seek judicial review of this decision by commencing a civil action in the appropriate superior court. See G. L. c. 66, § 10(d)(iv)(4), l0A(c). Sincerely, Rebecca S. Murray Supervisor of Records cc: Adam Bradley