On August 25, 2011, the Massachusetts Appeals Court, in a case of first impression, ruled that the state crime lab’s retention of an individual’s DNA sample beyond the limitations promised to him by the police when they took the voluntary sample state a claim for invasion of privacy, and for violation of the state’s Fair Information Practices Act (“FIPA”). The court’s clear holding that DNA is private information in which citizens have a reasonable expectation of privacy; that the government may not unilaterally determine how long it will retain such information, but must justify that decision; and that the state must honor limitations on consent volunteered by police officers in collecting such information, are all matters of first impression in Massachusetts.

In Amato v. District Attorney, No. 10-P-354 (Mass. Ct. App. Aug. 25, 2011), see slip opinion posted here, the Appeals Court reversed the trial court’s dismissal of the plaintiff’s claims alleging violation of the Fair Information Practices Act, invasion of privacy, and breach of contract and remanded the case for further proceedings. The case, which arose out of the voluntary collection of plaintiff’s DNA in connection with a 2002 murder investigation, challenged the crime lab’s retention of private individuals’ DNA samples despite representations that any samples and related records “would be destroyed and would not become part of any State or Federal database” if they did not match DNA evidence taken at the crime scene. According to the plaintiff, notwithstanding the successful prosecution of the man responsible for the murder, the state’s crime lab refused to destroy his and other DNA samples in its possession despite his repeated requests.

The state trial dismissed each of the plaintiff’s claims, but the Appeals Court reinstated each of them after finding that “[g]iven the circumstances under which the defendants induced [the plaintiff] and the others to allow access to this intensely private information [i.e., their DNA], including the promises of limited use and retention and the concomitantly restricted scope of consent granted, we are not convinced that the defendants have acted reasonably as matter of law.” In particular, the Appeals Court concluded that (i) plaintiff’s allegations, taken as true, plausibly suggest that the defendants violated the state’s FIPA by maintaining more personal data than reasonably necessary to carry out their statutory functions; (ii) retention of highly sensitive DNA records without consent and making them available for nonconsensual use in other criminal investigations are sufficient to constitute an unreasonable, substantial, and serious interference with an individual’s privacy; and (iii) the detective who sought the plaintiff’s DNA had the authority to bind the department to the limited scope of consent granted for the search and, thus, broader use by the defendants could constitute a breach of contract.