Seth Kershner v. Hampden County Sheriff's Department (SPR 20171769)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords January 12, 2018 SPR17/1769 Teresa S. Finnegan, Esq. General Counsel Hampden County Sheriffs Department 627 Randall Road Ludlow, MA 01056 Dear Attorney Finnegan: I have received the petition of Seth Kershner appealing the response of the Hampden 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, Mr. Kershner requested: 1. A spreadsheet showing the annual number of cell extractions executed by the correctional facility staff for years 2004-2017; 2. A spreadsheet showing the annual number of incidents involving staff use of force against correctional facility inmates for years 2004-2017; 3. A spreadsheet showing the annual number of incidents involving use of chemical agents by correctional facility staff for years 2004-2017; and 4. Training manuals, SOPS manuals, use of force guidelines and reports, or other types of documentation relating to the CERT. t\ On December 11 the Department provided Mr. Kershner with a spreadsheet showing the number of incidents involving staff use of force and the number of incidents that involved use of OC. However, the Department is withholding training manuals, SOPS manuals, use of force guidelines and reports, and other documentation relating to CERT pursuant to Exemption (b) of the Public Records Law. Unsatisfied with the Department's response, Mr. Kershner petitioned this office and this appeal 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, § lOA(d); 950 C.M.R. 32.03(4). "Public records" is broadly defined to include all documentary materials or data, regardless of physical 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

Teresa S. Finnegan, Esq. Page 2 January 12, 2018 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 must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. Exemption (b) The Department's December 11th response regarding its Exemption (b) claim states that the Hampden County Correctional Center's primary function is to maintain secure correctional facilities, that the procedures used by its officers during law enforcement efforts relate solely to the internal workings of the correctional center, and that disclosure could prove detrimental to the law enforcement efforts by allowing inmates to circumvent such procedures. 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 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 Department of the Air Force v. Rose, 425 U.S. 352, 362-70 (1976) (interpreting the federal Freedom oflnformation Act, which provides an exemption for records which are "related solely to the internal personnel rules and practices of an agency"); see also Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427,432 (1983) (Massachusetts Public Records Law modeled on federal Freedom oflnformation Act). The courts have interpreted the federal exemption to allow withholding of materials that, if released, could cause agency rules or regulations to be circumvented. See Fiumara v. Higgins, 572 F. Supp. 1093, 1102 (1983) (internal codes are exempt where disclosure may enable outsiders to circumvent agency functions). The analysis employed by the federal courts requires a two-pronged test. Material is exempt if it is predominantly used internally and if disclosure would significantly risk circumvention of agency regulations and statutes. See Marrera v. United States Dep't of Justice, 622 F. Supp. 51, 55 (D.D.C. 1985) (Bureau of Prisons access and identity codes were properly withheld as materials in which the public would have no legitimate interest or which would compromise security if disclosed).

Teresa S. Finnegan, Esq. Page 3 January 12, 2018 In Massachusetts, the records access officer or custodian normally must demonstrate that the information is not only related solely to internal rules or practices, but also that the proper performance of necessary government functions will be inhibited by disclosure. The Department's December 11th response has not demonstrated how disclosure of any of the records responsive to Mr. Kershner' s Request Number 4, in part or in whole, would compromise the correctional facility's security. I find that the Department has not met its burden of demonstrating how the records are exempt from disclosure, in their entirety, under Exemption (b). Burden of specificity - Duty to segregate The Department has not met its burden of claiming Exemption (b) with specificity, or stating what particular records the Department has that are responsive to Mr. Kershner' s request. The Public Records Law states that the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, § lO(b)(iv); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. A custodian of a record shall not only cite an exemption but must explain why the exemption applies to a withheld or redacted portion of the responsive record. See G. L. c. 66, § 1O (a). The Department also has a duty to segregate those portions of a record that are specifically exempt from disclosure, and provide the balance of the record. G. L. c. 66, § lO(a). Conclusion It is my understanding that an attorney in the Public Records Division contacted you about this appeal, and that you indicated that a supplemental response would be provided. Accordingly, the Department is hereby ordered to provide Mr. Kershner with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations 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. Mr. Kershner may appeal the substantive nature of the response within ninety calendar days. 950 C.M.R. 32.08(1).

Teresa S. Finnegan, Esq. Page4 January 12, 2018 Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Seth Kershner