Natalia Abreu v. Massachusetts State Police (SPR 20221880)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 24, 2022 SPR22/1880 Darina A. Griffin, Esq. Legal Counsel Department of State Police Crime Laboratory 12 Acton Street Maynard, MA 01754 Dear Attorney Griffin: I have received the petition of Adam Sanders appealing the response of the Department of State Police Crime Laboratory (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 24, 2022, Mr. Sanders requested “any and all scientific test results performed on clothing connected to a fatal shooting on [a specific date], at [a designated location], as well as, any scientific tests results performed on clothing recovered from the Office of the Chief Medical Examiner and given to the Crime Laboratory on [the same date], for an examination.” The Department responded on July 6, 2022, citing Exemptions (a), (c), and (f) of the Public Records Law for withholding responsive records, and also referring to pending criminal litigation. See G. L. c. 4, § 26(a), (c), and (f). Unsatisfied with the Department’s response, Mr. Sanders appealed, and this case 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 agency or municipality 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. Att’y 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 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 A. Griffin, Esq. SPR22/1880 Page 2 August 24, 2022 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 July 6th Response In its July 6, 2022 response, the Department notes that it “has been informed by the District Attorney’s Office that the case [Mr. Sanders is] inquiring about is a matter of pending litigation before the Superior Court.” Pending Litigation 950 C.M.R. 32.08(2)(b) provides in pertinent part: the Supervisor may deny an appeal for, among other reasons if, in the opinion of the Supervisor: 1. the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation. This office has reviewed the trial court’s docket and verified that criminal litigation, concerning the records at issue in this request, remains active and ongoing in the Massachusetts Superior Court. See Commonwealth v. Sanders (Superior Court Docket No. 0083CR00009). Conclusion In light of the pending matter, I decline to opine on this matter at this time. See 950 C.M.R. 32.08(2)(b). It should be noted that a change in the status of this litigation could impact the applicability of 950 C.M.R. 32.08(2)(b). Sincerely, Manza Arthur Supervisor of Records cc: Adam Sanders (by mail)