Adam Bradley v. Department of State Police - Crime Lab (SPR 20213357)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 11, 2022 SPR21/3357 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. Previous appeals This requested records were the subject of prior appeals. See SPR21/2712 Determination of the Supervisor of Records (October 22, 2021) and SPR21/2920 Determination of the Supervisor of Records (November 18, 2021). In my November 18th determination I found that the Department intended on providing a response to Mr. Bradley. On December 3, 2021, the Department responded. Unsatisfied with the Department’s response Mr. Bradley petitioned this office and this appeal, SPR21/3357, was opened as a result. 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). 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. SPR21/3357 Page 2 January 11, 2022 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). Appeal petition In his appeal petition Mr. Bradley states the following, “…here in the instant matter, my initial PRR is dated September 26, 2021 (Exhibit 1, Exhibit A), and it is indisputable, that, MSPCL RAO recieved [sic] my PRR on September 30, 2021….With that said, calculating the MSPCL response time from September 30, 2021 to October 15, 2021, sums up to 11, days which is one day pass the statutory 10 day deadline.” G. L. c. 66, § 10(e) G. L. c. 66, § 10(e) provides that “[a] records access officer shall not charge a fee for a public record unless the records access officer responded to the requestor within 10 business days under subsection (b).” Where the Department received the request on September 30, 2021 and given the holiday on October 11, 2021, the Department’s response is timely. I find the Department may assess a fee to produce responsive records. The Department’s December 3rd fee estimate In its December 3rd estimate, 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 indicated it “…the has retrieved the documents from long term storage and identified approximately 2,635 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. The Department estimates that it would take approximately 3 minutes per page of the documents, 1 minute per photograph and 12 minutes total for the video in order to review, determine if there are any responsive documents, segregate and redact those records. The task of reviewing and redacting the documents requires both skill and knowledge of the records themselves as well as the exemptions to the public records law. Accordingly, the Department estimates that it would take approximately 145.38 hours to complete the task. After subtracting the standard 4 hours the total is 141.38 hours at a rate of$25/hour...”

Darina Griffin, Esq. SPR21/3357 Page 3 January 11, 2022 The Department contends that “the records you are seeking relate to a multiple codefendant case, the records that you are seeking contain Criminal Offender Record Information (CORI) for other individuals. As a result, the records require redaction pursuant to the law. At the outset, G.L. c. 4, § 7, cl. 26 (a) exempts from public disclosure any records that are ‘specifically or by necessary implication exempted from disclosure by statute.’ The reports and other documentation include names of other individuals charged with criminal offenses and therefore are records of a 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. 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, therefore exempted the records by necessary implication.” 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, “…the responsive records include a criminalistics file and a DNA files associated with the case, which contains criminalistics, and genetic/ DNA testing information of blood and biological fluids. The Department asserts that DNA information, particularly DNA profiles of defendants, suspects, witnesses and victims of crimes is information that is not a public records as it is exempted as private and potentially medical information pursuant to G.L. c. 4, § 7, cl. 26 ( c ). 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). The private and medical serological/DNA information appears in various documents throughout the laboratory case records. The records are of a highly technical nature and require a detailed review to ensure that private and medical information is not publicly disclosed in violation of other state and federal laws.” 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 “…that where the appeal of your criminal matter

Darina Griffin, Esq. SPR21/3357 Page 4 January 11, 2022 remains pending and the final outcome of the criminal matter has not occurred, that the investigatory exemption applies to protect the information from premature public disclosure.” The Department further states, “…the Department reviewed 121 pages of one of the Criminalistics File Folder and all but 21 pages of those required require redaction or an analysis of whether the entire page should be withheld as they contain witness or victim personal identifying information, CORI information, private or investigatory information. G.L. c. 4, § 7, cl. 26 (a), (c) and (f). Similarly, the Crime Scene Services Section case files contain identifying information and also fingerprint and palmprint information related to other individuals. This information is private, medical and potentially CORI and therefore exempted from disclosure pursuant to G.L. c. 4, § 7, cl. 26 (a), (c) and (f).” Conclusion As set forth above, I find the Department has met its burden in responding to Mr. Bradley’s request at this time. Any revision to the request would result in the requirement to issue a revised estimate. Accordingly, I will consider this administrative appeal closed. Sincerely, Rebecca S. Murray Supervisor of Records cc: Adam Bradley