Seth Kershner v. Suffolk County Sheriff's Department (SPR 20190816)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 2, 2019 SPR19/816 Maria F. Romero, Esq. Assistant General Counsel Suffolk County Sheriff's Department 200 Nashua Street Boston, MA 02114 Dear Attorney Romero: I have received the petition of Seth Kershner appealing the response of the Suffolk County Sheriff's Department (Department) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on August 3, 2018, Mr. Kershner requested photographs and video recordings of "use of force" incidents occurring on identified dates. In a September 14, 2018 email, Mr. Kershner made a revised request narrowing the scope with respect to the "use of force" videos to only the following dates: "Mar. 14, 2017; Jun. 10, 2017 (11-7 shift ONLY); June 16, 2017; Sept. 2, 2017 (3-11 shift ONLY); Oct. 26, 2017 (3-11 Shift ONLY); Nov. 28, 2017 and Dec. 26, 2017." Prior appeal The responsive records were the subject of a prior appeal. See SPRl 8/1519 Determination of the Supervisor of Records (Supervisor) (October 26, 2018). The Department provided Mr. Kershner with a $1200.00 estimate to provide six "use of force" video recordings. Mr. Kershner objected to the fee, indicating that the Department did not respond to his revised request within ten (10) business days. In my October 26th determination, I ordered the Department to provide Mr. Kershner with a response to explain whether it responded to Mr. Kershner's September 14th request within 10 business days in order to assess fees under the Public Records Law. In a November 6, 2018 response, the Department informed Mr. Kershner that no fees will be charged to provide the responsive "use of force" video recordings. In a February 6, 2019 email, the Department informed Mr. Kershner it was in the process of mailing the flash drive containing the six ( 6) redacted video recordings. As a result of the redactions, Mr. Kershner petitioned the Supervisor on April 23rd, and the current appeal was opened. 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

Maria F. Romero, Esq. SPR19/816 Page 2 May 2, 2019 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, § IOA(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, § IO(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). Exemption (a) In an April 23, 2019 email, the Department claims it withheld not only the facial images but the entire body images and entire audio recording of inmates/detainees from the "use of force" video and audio recordings within the correctional facility under G. L. c. 6, § 167, as it operates through Exemption (a) of the Public Records Law. Exemption (a), known as 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

Maria F. Romero, Esq. SPR19/816 Page 3 May 2, 2019 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. Criminal Offender Record Information (CORI) Act The applicable statute that the Department cited to withhold the identifying images of the subject inmates/detainees and the audio in the "use of force" recordings, is the CORI Act. G. L. c. 6, § 167. CORI is defined as: "Criminal offender record information", records and data in any communicable form compiled by a Massachusetts 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, other judicial proceedings, previous hearings conducted pursuant to section 58A of chapter 276 where the defendant was detained prior to trial or released with conditions under subsection (2) of section 58A of chapter 276, sentencing, incarceration, rehabilitation, or release. Such information shall be restricted to information recorded in criminal proceedings that are not dismissed before arraignment. 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. Criminal offender record information shall be limited to information concerning persons who have attained the age of 18 and shall not include any information concerning criminal offenses or acts of delinquency committed by any person before he attained the age of 18; provided, however, that if a person under the age of 18 is adjudicated as an adult, information relating to such criminal offense shall be criminal offender record information. Criminal offender record information shall not include information concerning any offenses which are not punishable by incarceration. G. L. C. 6, § 167. I find the Department did not meet its burden in claiming the CORI Act without providing specificity to support its exemption claim to withhold certain of the video and audio recordings. The Department merely stated that images and audio were withheld from the recordings under the CORI Law. The Department's response regarding CORI,- privacy laws; medical records laws The Department's April 23rd response also contends that it properly redacted the "use of force" video footage and audio recordings under privacy and medical records laws. The response states: "[t]he videos recorded individuals who had to be restrained and moved for disciplinary, medical and/or mental health reasons. In the videos the recorded individuals included individuals who were completely unclothed, or in various stages of undress, or had used bodily fluids on themselves. Thus their figures, in addition to their faces needed to be

Maria F. Romero, Esq. SPR19/816 Page 4 May 2, 2019 redacted. No audio was provided because the videos' officers relate personal inmate information, their medical conditions, their response to medical attention provided throughout the video, and inmate responses to personal questions posed during the recordings. Thus, disclosure of inmate's names, personal information, injuries, medical and/or mental health status is privileged under CORI laws, privacy laws and medical records laws." The April 23rd email response did not specify what privacy laws and medical records laws the Department is referring to in withholding certain of the images of inmates/detainees in the six "use of force" videos and withholding all the audio recording taken in the correctional facility. Therefore, I find the Department has not met its burden in withholding certain of the video footage and audio recordings provided to Mr. Kershner. Burden of specificity The Department withheld certain of the video footage and audio recording without claiming exemptions, with specificity, in the Public Records Law that would support the withholding of portions of the video and audio recordings. Under the Public Records Law, 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. The Department did not meet its burden of demonstrating how the portions withheld from the video and audio recordings are exempt from disclosure. 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). It is my understanding that a Public Records Division staff attorney spoke with Assistant General Counsel Jennifer C. Lyons, Esq. about this appeal and the Department's April 23rd response. Conclusion Accordingly, the Department is ordered to provide Mr. Kershner with a response, in a manner consistent with this order, the Public Records Law and its Regulations within 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Seth Kershner