Seth Kershner v. Hampden County Sheriff's Department (SPR 20180330)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 28, 2018 SPRlS/330 Theresa S. Finnegan, Esq. General Counsel Hampden County Sheriffs Department 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 "an opportunity to inspect or obtain copies of video recordings of cell extractions and/or staff use of chemical agents conducted at Hampden Correctional Facility" listing specific dates and "incident id" numbers. The Department responded to his request claiming the responsive records exempt from disclosure pursuant to the Criminal Offender Record Information (CORI) Act and Exemption (b) of the Public Records Law. G. L. c. 6, § 167; G. L. c. 4, § 7(26)(b). 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 must not only cite an exemption, but must also state why the exemption applies to the withheld or.redacted portion of the responsive record. 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

Theresa S. Finnegan, Esq. SPR18/330 Page 2 March 28, 2018 Exemption (a) The Department indicates that "[it] is denying [Mr. Kershner's] request based on ... Massachusetts CORI laws M.G.L. c. 6 section 167." G. L. c. 6, § 167. Exemption (a), the statutory exemption, permits the withholding ofrecords 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 exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either "shall not be a public record," "shall be kept confidential" or "shall not be subject to the disclosure provision of the Public Records Law." The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. In its March 3rd response, the Department asserts that "[t]he videos are ... exempt from public disclosure based on protections provided by MGL c. 6 section 167 'CORI law'. The CORI law forbids [the Department] from sharing information regarding inmates relative to their identity and events of their incarceration. It would be extremely difficult, if not impossible to block out the identity of the inmates in the videos. To the extent achieving this is a possibility, we anticipate that this would be a very costly venture." 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

Theresa S. Finnegan, Esq. SPR18/330 Page 3 March 28, 2018 analytical reports and files in which individuals are not directly or indirectly identifiable, or intelligence information. Intelligence information, which is not CORI and therefore not statutorily exempt from disclosure, is defined as: [R]ecords and data compiled by a criminal justice agency for the purpose of criminal investigation, including reports of informants, investigators or other persons, or from any type of surveillance associated with an identifiable individual. Intelligence information shall also include records and data compiled by a criminal justice agency for the purpose of investigating a substantial threat of harm to an individual, or to the order or security of a correctional facility G. L. C. 6, § 167. Exemption (b) Regarding its Exemption (b) claim, in its March 3rd response the Department indicates that the "Department's primary functions involve the safe housing of inmates in its Correctional facilities and public safety. The videos [the Department] take[s] related to Use of Force are solely related to an internal practice and policy that is used to enhance the safety and security of our staff and inmates." 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. 3 52, 3 62-70 ( 197 6) (interpreting the federal Freedom of Information 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

Theresa S. Finnegan, Esq. SPR18/330 Page 4 March 28, 2018 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). The Department explains that "[the Department's] staff responds to emergency situations regularly and must respond in such a manner as to maximize safety and security. Allowing the videos to be made public would display tactics and security methods that, if observed by inmates or future inmates, would allow them an opportunity to thwart security measures and tactics used at another time. If an inmate or member of the public were to have access to this information, it would not only jeopardize the safety and security of our officers, staff, and inmates, it would allow individuals to plan around our policies and procedures and jeopardize the safe and secure operation of the facility. Much of the success of our officers' response requires the element of surprise." Further, the Department explains that "[its] officers have no tools for use oflethal force within the secure perimeter. Therefore, each time they respond to a situation that may require use of force they are risking their lives with no ability to use lethal force. To allow public access to information as to how they respond would undermine the officer's efforts to information would most definitely provide a strategic advantage to the inmates desiring to accomplish harm against themselves or others." 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. Based on the nature of the specific records Mr. Kershner is requesting and the Department's explanation as to how the videos relate solely to internal practice and policy and how disclosure would inhibit the Department's necessary functions, I find that the Department has met its burden of demonstrating how the records are exempt from disclosure, in their entirety, under Exemption (b) and may be properly withheld. I understand a Public Records Division staff member contacted you about this matter. Conclusion Accordingly, whereas I find the Department may permissibly withhold responsive records under Exemption (b ), I decline to opine on the Department's CORI Act claim supporting non-disclosure of the requested records .. I will consider this administrative appeal closed. If Mr. Kershner is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 1O (b) (pursuing administrative appeal does not limit availability of applicable judicial remedies).

Theresa S. Finnegan, Esq. SPR18/330 Page 5 March 28, 2018 Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Seth Kershner