Eric Rasmussen v. Department of Correction - Legal Division (SPR 20170613)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords May 18, 2017 SPR17/613 Christopher Fallon Assistant Deputy Commissioner of Communications Department of Corrections 50 Maple Street, Suite 3 Milford, MA 01757 Dear Mr. Fallon: I have received the petition of Eric Rasmussen of Fox 25 News appealing the response of the Department of Correction (Department or DOC) to a request for public records. G. L. c. 66 § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Rasmussen requested three categories of records: (1) emails sent and received between the Department and the Governor's Office regarding an identified individual within a certain time period; (2) surveillance videos pertaining to an identified individual within a certain time period; and (3) phone call recordings of an identified individual. In a response dated May 3, 2017 the Department explains there are no documents responsive to the request for emails. The Department denied access to the surveillance videos and phone recordings under Exemptions (a), (c), (f), and (n) of the Public Records Law. G. L. c. 4, § 7 (26)(a), (c), (f), (n). In his appeal petition, Mr. Rasmussen indicates he wishes to "appeal DOC's response to our records request, specifically, the privacy exemptions." 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, § lO(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 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

Christopher Fallon SPRl 7/613 Page2 May 18, 2017 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 Records Division attorneys are available during regular business hours to answer general questions · regarding the Public Records Law. In addition, Public Records Division staff 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. Surveillance videos The Department cites Exemptions (a), (c), (f), and (n) to withhold responsive surveillance videos. Exemption (n) Exemption (n) applies to: records, including, but not limited to, blueprints, plans, policies, procedures and schematic drawings, which relate to internal layout and structural elements, security measures, emergency preparedness, threat or vulnerability assessments, or any other records relating to the security or safety of persons or buildings, structures, facilities, utilities, transportation, cyber security or other infrastructure located within the commonwealth, the disclosure of which, in the reasonable judgment of the record custodian, subject to review by the supervisor of public records under subsection ( c) of section 10 of chapter 66, is likely to jeopardize public safety or cyber security. G. L. c. 4, §7 (26)(n). Exemption (n) allows for the withholding of certain records which if released would undermine public safety. It is the duty of the custodian ofrecords to exercise reasonable judgment to determine whether release of the record is likely to jeopardize public safety. Given the unique statutory construction of Exemption (n), records released to a particular individual through this exemption need not be released to all subsequent requestors.

Christopher Fallon SPRl 7/613 Page 3 May 18, 2017 In its May 3rd response the Department explains "[r]elease of the video may reveal the particular angle of the camera or disclose the location of a hidden surveillance camera. Although inmates may be aware that there are surveillance cameras at SBCC, they may not be aware of all of the locations of all of the surveillance cameras." The Department further asserts "[v ]ideo taken within a correctional facility raises serious security concerns, as such videos contain images of sensitive security measures such as cell door locks and camera angles or blind spots. This information, if released, could be used to undermine the safety and security of the facilities, risking the safety of inmates and staff, as well as the public at large." I find the Department has met its burden to explain how the requested video is likely to jeopardize public safety because of the security concerns articulated above. As such, I will not opine on the Department's other exemption claims supporting non-disclosure of surveillance videos. Phone call recordings The Department cites the second clause of Exemption ( c) to withhold responsive phone call recordings. · Exemption (c) 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). Analysis under the second clause of Exemption (c) is subjective in nature and requires a balancing of the public's right to know against the relevant privacy interests at stake. Torres v. Attorney Gen., 391 Mass. 1, 9 (1984); Attorney Gen. v. Assistant Comm'r of Real Property Dep't, 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case by case basis. This clause requires a records custodian to perform a two-step analysis to determine whether the record may be withheld from disclosure. First, the records custodian must determine whether the information constitutes an "intimate detail of a highly personal nature" regarding a specific individual. If so determined, then the records custodian must consider whether the privacy interests of the individual outweigh the public interest in disclosure of this information. See Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 156 (1979). The Department states "[i]n the case of telephone records or recordings, these are not public record because of the significant abridgement of privacy rights involved in their release."

Christopher Fallon SPR17/613 Page 4 May 18, 2017 You also indicate "[t]he privacy rights of someone who converses with a prison inmate certainly outweigh the public's right to view telephone call logs or to listen to these personal conversations." However, it is unclear based on the Department's response how the identity of a "specifically named individual" with a privacy interest would be revealed if the records are disclosed, even in redacted form. See Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). The Department must explain why any non-exempt, segregable portions of the responsive records cannot be disclosed. See G. L. c. 66, § lO(a). I understand a Public Records Division staff attorney contacted you about this matter. Conclusion Accordingly, the Department is hereby ordered to provide Mr. Rasmussen with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten 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. Sincerely, ~ u r r ~ Supervisor of Records cc: Eric Rasmussen