Seth Kershner v. Franklin County Sheriff's Department (SPR 20180322)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords March 22, 2018 SPRlS/322 Lieutenant Nicholas Carme Franklin County Sheriffs Office 160 Elm Street Greenfield, MA 01301 Dear Lieutenant Carme: I have received the petition of Seth Kershner appealing the response of the Franklin County Sheriffs Office (Sheriff) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1 ). Specifically, Mr. Kershner requested copies of "use of force reports for each time chemical agents were used by the Franklin County correctional facility staff during calendar years 2016 and 2017." In a March 7, 2018 response, the Sheriff denied Mr. Kershner's request pursuant to Exemption (n) ofthe Public Records Law. Mr. Kershner petitioned the Supervisor of Records (Supervisor), and this appeal was opened. 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) (written response must "identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based ... "); 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). 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

Lt. Nick Carme SPR18/322 Page 2 March 22, 2018 If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Sheriff's March fh response The Sheriff's March ih response indicates that the Sheriff is denying the request in its entirety pursuant to Exemption (n) of the Public Records Law. The response merely states that Exemption (n) applies to "security measures, emergency preparedness, internal layout and structural elements." 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 jeopardize public safety. The first prong of Exemption (n) examines "whether, and to what degree, the record sought resembles the records listed as examples in the statute;" specifically, the 'inquiry is whether, and to what degree, the record is one a terrorist' would find useful to maximize damage." People for the Ethical Treatment of Animals (PETA) v. Dep't of Agric. Res., 477 Mass. 280, 289-90 (2017). The second prong of Exemption (n) examines "the factual and contextual support for the proposition that disclosure ofthe record is 'likely to jeopardize public safety."' PETA, 477 Mass. at 289-90. The PETA decision further provides that "[b] ecause the records' custodian must exercise 'reasonable judgment' in making that determination, the primary focus on review is whether the custodian has provided sufficient factual heft for the supervisor of public records or the reviewing court to conclude that a reasonable person would agree with the custodian's determination given the context of the particular case." Id. The Sheriff's March ih response only states that the Sheriff is denying the request for the "use of force" reports because Exemption (n) applies to security measures, emergency preparedness, internal layout and structural elements. It is unclear how the reports, even in a redacted format, pertain to the type of information contemplated in the first prong of the PETA

Lt. Nick Carme SPR18/322 Page 3 March 22,2018 analysis, such as how disclosure of the reports will jeopardize the public's safety and/or whether the record is one that a terrorist' would find useful to maximize damage. The Sheriff has not provided concrete examples of how the public's safety would be jeopardized by releasing the records either entirely or in a redacted form. As such, the Sheriff has not provided any "factual heft" to establish how disclosure of the information contained the "use of force" reports is likely to jeopardize public safety or cyber security. For these reasons, the Sheriff has not met its burden to justify withholding the use of force reports, in their entirety, under Exemption (n). Burden of specificity; duty to segregate The Sheriff denied Mr. Kershner's request in its entirety under Exemption (n) without providing any support for withholding of the responsive use of force reports. Under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, § 10(b)(iv); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The Sheriff did not meet its burden of demonstrating how the responsive records, in their entirety, are exempt from disclosure. See Reinstein v. Police Comm'r ofBoston, 378 Mass. 281,289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). The Sheriff must produce any non-exempt, segregable portions of the public records. G. L. c. 66, § 10(a). I understand a Public Records Division attorney contacted you regarding this appeal, and that appeal file was provided to you via email. Order Given that the Sheriff did not meet its statutory obligation to demonstrate how the records fall under an exemption, the Sheriff may not withhold the requested records. Accordingly, the Sheriff is ordered to provide Mr. Kershner with the responsive records, 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. The Sheriff may file a request for reconsideration of this determination within ten business days of the date of this determination letter. Sincerely, Rebecca S. Murray Supervisor of Records cc: Seth Kershner