Dana Gottesfeld v. Plymouth County Sheriff's Office (SPR 20170367)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Recorr;ls April 5, 2017 SPR17/367 Patrick C. Lee, Esq. General Counsel Plymouth County Sheriffs Department 24 Long Pond Road Plymouth, MA 02360 Dear Attorney Lee: I have received the petition of Dana Gottesfeld appealing the response of the Plymouth County Sheriffs Department (Department) to a request for public records. G. L. c. 66 § lOA; see also 950 C.M.R. 32.08(1). Specifically, Ms. Gottesfeld requested an opportunity to inspect or obtain copies of: All records, including logs and correspondence that explicitly mention and/or relates to the terms and concepts of: hang it up, hung it lip, asphyxiation, Q5, Q 5, Q five, FOIA, and all references to suicide in the Month of February 2017. Note: This request is not for information protected under the Criminal Offender Record Information Act. On March 151 \ the Department provided Ms. Gottesfeld with shift commander reports and correspondence responsive to the request. The Department redacted the names of inmates who are the subject of the reports pursuant to the Criminal Offender Record Information (CORI) Act as it operates through Exemption (a) of the Public Records Law. See G. L. c. 4, § 7(26)(a); G. L. c. 6, § 172. The Department is withholding medical files and information pursuant to the first clause of Exemption ( c ), and reports and clinical reviews regarding the incidents involving suicides, suicide attempts or placement of individual detainees on suicide watch or mental health watch under Exemptions (b) and (f) of the Public Records Law. The Department provided Ms. Gottesfeld with a written, good faith estimate for the cost of providing her with individual housing unit logbooks relating to the subject matter in her request. The Department estimates that the total cost is $2,244.32. Ms. Gottesfeld appealed the Department's denial of certain records as well as the fee estimate provided. 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

Patrick C. Lee, Esq. SPRl 7/367 Page 2 April 5, 2017 Appeal to the Supervisor You informed a Public Records Division attorney that the Department did not receive a copy of Ms. Gottesfeld's petition to the Supervisor of Records (Supervisor) requesting an administrative appeal. It is my understanding that a Public Records Division staff member provided you with a copy of the appeal file via email. Ms. Gottesfeld is reminded that under the new requirements in the Public Records Law, when petitioning the Supervisor for an appeal, the requester shall provide a copy of such petition to the RAO associated with such petition. 950 C.M.R. 32.08(1)(h). Status of the requester and reason for the request It is important for Ms. Gottesfeld to understand that her interest in the subject matter of the request, does not afford her any greater right of access to the requested information under the Public Records Law. The Public Records Law does not distinguish between requesters. Access to a record requested pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requester. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Ms. Gottesfeld's status will play no role in a determination as to whether the records should be disclosed to the public. 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, § lOA(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, § 1 O(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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1 O(b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. To assist in requesting and responding to requests for public records please refer to our publication, A Guide to the Massachusetts Public Records Law. This document is available on the Internet, free of charge, at http://www.sec.state.ma.us/pre/prepdf/guide.pdf. Public Record Division attorneys are available during regular business hours to answer general questions

Patrick C. Lee, Esq. SPRl 7/367 Page 3 April 5, 2017 regarding the Public Records Law. In addition, Public Record Division staff members will visit a records custodian in person to conduct training workshops on the Public Records Law upon request. Please contact the Public Records Division directly at the telephone number provided in this determination for further information. Exemption (a) The Department provided redacted records, withholding the names of inmates/detainees pursuant to the Criminal Offender Record Information Act as it operates through Exemption (a). Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7 (26)(a) A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public's right to inspect records under the Public Records Law is restricted. See Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This office cannot order disclosure ofrecords if a statute mandates nondisclosure. Gen. Chem. Corp. v. Dep't ofEnvtl. Quality Eng' g, 19 Mass. App. Ct. 287 (Mass. App. Ct. 1985). The applicable statute that the Department cited to withhold the names of the subject inmates/detainees, pursuant to Exemption (a) is the CORI Act. G. L. c. 6, § 167. CORI, which is statutorily exempt from disclosure, is defined as: [A ]ny records and data in any communicable form compiled by a criminal justice agency which concern an identifiable individual and relate to the nature or disposition of a criminal charge, an arrest, a pre-trial proceeding, or other judicial proceedings, sentencing, incarceration, rehabilitation, or release. Such information shall be restricted to that recorded as the result of the initiation of criminal proceedings or any consequent proceedings related thereto. Criminal offender record information shall not include evaluative information, statistical and analytical reports and files in which individuals are not directly or indirectly identifiable, or intelligence information. G. L. C. 6, § 167. The Supreme Judicial Court has held "there is no violation of the CORI statute when the search specifications consist of information that would also be revealed on the court's records accessible to the public." Globe Newspaper Co. v. Dist. Attorney for the Middle Dist., 439 Mass. 374, 384 (2003). The Department has not sufficiently indicated how these records fall under the CORI Act. Specifically, it is unclear whether these records are available from other sources,

Patrick C. Lee, Esq. SPRl 7/367 Page4 April 5, 2017 including court records accessible to the public. Consequently, the Department has not met its burden in withholding the requested records pursuant to Exemption (a). Exemption (c) The Department has withheld responsive medical reports and medical information related to suicide, attempted suicide, or statements of behavior raising concern of harm to self or others regarding physical and mental health of inmates/detainees pursuant to Exemption ( c) of the Public Records Law. Exemption ( c) permits the withholding of: personnel and medical files or information; also any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy G. L. c. 4, § 7 (26)(c). Exemption ( c) contains two distinct and independent clauses, each requiring its own analysis. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 432-33 (1983). The first clause creates a categorical exemption for personnel and medical information that relates to an identifiable individual and is of a "personal nature." Id. at 434. Medical information that is of a personal nature and relates to a specifically named individual is exempt from disclosure. Brogan v. School Comm. of Westport, 401 Mass. 306, 308 (1987); Globe Newspaper Co., 388 Mass. at 438. Generally, medical information will always be of a sufficiently personal nature to warrant exemption. Globe Newspaper Company, 338 Mass. at 432-34. There is a strong public policy in Massachusetts that favors confidentiality as to medical data about a person's body. Globe Newspaper Co. v. Chief Medical Examiner, 404 Mass. 132, 135 (1987). Please note that an individual's privacy interest in protecting his or her medical information survives death. See Chief Medical Examiner, 404 Mass. at 134. The Department is withholding medical records and information, such as clinical reviews concerning the physical and mental health of individual inmates/detainees pursuant to the first clause of Exemption ( c) of the Public Records Law. I find that such medical information may be withheld under Exemption (c ). Exemption (I) The Department declines to provide reports and clinical reviews regarding the individual incidents involving suicides, suicide attempts, or placement of individual detainees on suicide watch or mental health watch. The Department's response states that these records constitute investigatory materials, and release of the records would increase the risk that inmates could circumvent the security procedures at the facility, reducing the ability of security staff to intervene and prevent suicide or save the life of an inmate who has attempted suicide. The Department has withheld the records pursuant to Exemption (:f), the "investigatory" exemption, permits the withholding of:

Patrick C. Lee, Esq. SPRl 7/367 Page 5 April 5, 2017 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 G. L. c. 4, § 7 (26)(f). A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Exemption (f) provides a limited protection for those law enforcement activities that require a cloak of confidentiality to succeed. The Supreme Judicial Court has stated that Exemption (f) aims at "the avoidance of premature disclosure of the Commonwealth's case prior to trial, the prevention of the disclosure of confidential investigative techniques, procedures, or sources of information, the encouragement of individual citizens to come forward and speak freely with police concerning matters under investigation, and the creation of initiative that police officers might be completely candid in recording their observations, hypotheses and interim conclusions." Bougas, 371 Mass. at 62; cited with approval in Reinstein v. Police Comm'r of Boston, 378 Mass. 281,289 (1979). This exemption, however, does not provide a blanket exemption for all investigatory materials. Reinstein, 378 Mass. at 289. Instead, "it invites case-by-case consideration of whether access 'would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest." Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas, 371 Mass. at 62. An investigative agency is not required to demonstrate prejudice to withhold the identities of voluntary witnesses, informants, or complainants. Reinstein, 378 Mass. at 290 n.18. As a matter of course, witness provided information is essential to efficient and effective law enforcement. This exemption is intended to allow investigative officials to provide an assurance of confidentiality to private citizens so that they will speak openly and voluntarily about matters. Bougas, 371 Mass. at 62. Any information contained in a witness statement, which if disclosed would create a grave risk of directly or indirectly identifying the voluntary witness is subject to withholding. Globe Newspaper Co., 388 Mass. at 438. The Supreme Judicial Court has held that "the inquiry as to what constitutes identifying information regarding an individual must be considered not only from the viewpoint of the public, but also from the vantage of those who may be familiar with the individual." Id. The Department posits that disclosure of the records would, "[R]eveal enforcement methods in responding to and investigating suicide attempts at the facility. Public dissemination of such law enforcement methods would increase the risk that inmates could circumvent the

Patrick C. Lee, Esq. SPRl 7/367 Page 6 April 5, 2017 security procedures of the facility, reducing the ability of security staff to intervene and prevent suicide or save the life of an inmate who has attempted suicide." The Department has not met its burden of demonstrating that the records must be withheld in their entirety under Exemption (f) in order to protect the confidential investigatory techniques and any law enforcement methods used at the facility that would so jeopardize effective law enforcement in the future, that disclosure would not be in the public interest. Disclosure of the names and othet identifying information of complainants and voluntary witnesses may deter other individuals from coming forward to assist law enforcement officials in future investigations. Therefore, Exemption (f) will allow the Department to withhold the names and identifying details of any complainants and voluntary witnesses. Where these individuals can be indirectly identified even with redaction, the Department may withhold any complainant or witness statements in its entirety under Exemption (f). I find that the Department has not met its burden of supporting its claim that the Department may withhold the records in their entirety, instead of redacting the confidential investigatory techniques, law enforcement methods, and victim and witness identifying information under Exemption (f) . . Exemption (b) The Department has also withheld the documents that constitute information related solely to internal personnel rules and practices of the government unit pursuant to Exemption (b) of the Public Records Law. Exemption (b) permits the withholding of records that are: related solely to internal personnel rules and practices of the government unit, provided however, that such records shall be withheld only to the extent that proper performance of necessary governmental functions requires such withholding G. L. C. 4, § 7 (26)(b ). There are no authoritative Massachusetts decisions interpreting Exemption (b ). The general purpose of the cognate federal exemption, however, is to relieve agencies of the burden of assembling and maintaining for public inspection materials in which the public cannot reasonably be expected to have an interest. See Dep't of the Air Force v. Rose, 425 U.S. 352, 362-70 (1976); see also Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427,432 (1983) (Massachusetts Public Records Law modeled on Federal Freedom oflnformation Act). Materials relating to matters such as personnel's use of parking facilities, regulation of lunch hours and statements of sick leave policy are examples of the types of records to which that exemption applies. Rose, 425 U.S. at 362.

Patrick C. Lee, Esq. SPR17/367 Page 7 April 5, 2017 The language of the federal provision is duplicated in the first clause of Exemption (b ). The second clause of Exemption (b) , however, contains language which requires a more restrictive application. See Globe Newspaper Co., 388 Mass. at 432-33. Therefore, a custodian must not only demonstrate that the records relate solely to the internal personnel practices of the government entity, but that proper performance of necessary government functions will be inhibited by disclosure. One of the Department's primary functions is to maintain a secure penal institution, and part of that function is the classification of prisoners who may pose a threat to themselves or others and/or to the institution's security. The rules and regulations followed by correctional officers during law enforcement efforts relate solely to the internal workings of the Department. The Department's response states that the records must be withheld under Exemption (b) because disclosure would reveal law enforcement methods in responding to and investigating suicide attempts·and inmate behavior, or statements which suggest a risk of harm to the detainee or others. Further, public disclosure of such law enforcement methods would increase the risk that inmates could circumvent the security procedures of the facility. I find that the Department has not met its burden under Exemption (b) of explaining why the records are solely related to internal rules and procedures of the correctional facility, and why release of the record would inhibit the proper performance of necessary government functions. Please be advised that statutory exemptions are narrowly construed and not blanket in nature; any non-exempt, segregable portion of a public record is subject to mandatory disclosure. See Reinstein, 378 Mass. at 289-90; see also G. L. c. 66, § lO(a). Therefore, I find that the Department has not met its burden of proving that the responsive records should be withheld in their entirety pursuant to Exemptions (a), (f) and (b) of the Public Records Law. Written, good faith estimate 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, § lO(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. The Department only provided a written estimate for the cost of providing the responsive housing unit logbooks referenced in Ms. Gottesfeld's request. The Department has assessed a fee

Patrick C. Lee, Esq. SPRl 7/367 Page 8 April 5, 2017 for segregation of ninety-six (96) hours at the lowest paid clerk typist's hourly rate of $18 .17, and a fee for redaction of twenty (20) hours at the lowest paid paralegal's hourly rate of $25.00 per hour. The total cost assessed to provide the logbook records is $2,244.32. Your estimate reveals that the Department has already reduced the estimate by not assessing a fee for the first four (4) hours of time, and has limited its hourly rates to a maximum of $25.00 per hour as required by the new provisions of the Public Records Law. G. L. c. 66, § 10(d )(ii). Your estimate includes fees for segregation time defined as, "the time used to review records to determine what portions are subject to redaction or withholding under G. L. c. 4, § 7(26) or other legally applicable privileges" and for redaction time necessary as "to delete, or otherwise expurgate that part of the public that is exempt from disclosure under G. L. c. 4, § 7(26) or other legally applicable privileges." See 950 C.M.R. 32.02 (definitions). 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, § lO(d)(iv). See G. L. c. 66, § lO(d)(ii); 950 CMR 32.06(4). The Department has not provided any statutory basis allowed for the segregation or redaction, nor has the Department sought approval from the Supervisor of Records to assess fees I find that the Department has not met its burden and must clarify whether any statutory basis requires that the Department redact certain information in the Department's records and detail its estimate, providing Ms. Gottesfeld with a revised estimate to clarify its number of hours and statutory basis for the fees for segregation and redaction. Conclusion Accordingly, whereas the Department has agreed to provide a more detailed response to the request, including the statutory basis that allows the Department to charge for redaction of the records, in a manner consistent with this order, the Public Records Law and its Regulations, I will consider this appeal closed with the proviso that the Department provides Ms. Gottesfeld with the response 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. Ms. Gottesfeld may appeal the substantive nature of the response within ninety (90) days. 950 C.M.R. 32.08(1). Sincerely, ~ ~ f l \ ~ Rebecca S. Murray Supervisor of Records cc: Ms. Dana Gottesfeld