Seth Kershner v. Suffolk County Sheriff's Department (SPR 20191719)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray S11pe1visor of Records September 6, 2019 SPR19/1719 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 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 photographs and video recordings of "use of force" incidents occuning on identified dates. The request for the "use of force" videos is limited 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); Oct. 26, 2017 (3-11 Shift ONLY); Nov. 28, 2017 and December 26, 2017." Prior Appeals Mr. Kershner's request was the subject of prior appeals. See SPRl 9/1519 and SPRl 9/816 Dete1minations of the Supervisor of Records (Supervisor) (October 26, 2018 and May 2, 2019). In my May 2nd determination, I found that in its April 23, 2019 response, the Department did not meet its burden of specificity in withholding the video recordings in their entirety under the Criminal Offender Record Information (CORI) Act as it operates through Exemption (a), and both clauses of Exemption ( c) of the Public Records Law. I ordered the Department to provide a further response. 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 fonn 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). 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 Romero, Esq. SPR19/1719 Page 2 September 6, 2019 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, § 1O (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. Attomey for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). Current appeal In its June t 11 response, the Department indicates that the redactions were made pursuant to the CORI Act; the first clause of Exemption ( c) due to medical infom1ation; and the second clause of Exemption (c) due to privacy issues. Mr. Kershner objects to p01iions of these redactions. Exemption (a) In its April 23, 2019 email and June 7, 2019 response, the Department indicates it withheld not only the facial images but the entire body images and entire audio recording of inmates/d etainees from the "use of force" video and audio recordings, from the moment that an inmate/detainees identifying information is uttered, 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 Romero, Esq. SPR19/l 7 l 9 Page 3 September 6, 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 infotmation 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 infotmation. Criminal offender record infomrntion shall be limited to information concerning persons who have attained the age of 18 and shall not include any infornrntion 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. In its June 7th response, the Department asserts, "[t]he recordings constitute CORI as data compiled by a J\1assachusetts criminal justice agency regarding an identifiable individual. See G. L. c. 6, § 167; Hawkins v. Comm'r of Correction, 406 Mass. 898,900 (1990). Thus, the images of the inmates' images (facts, naked bodies, wounds and injured limbs) were redacted. Likewise, all statements relating to the individuals, i.e., reasons for use of the restraint chair, institutional status, housing and medical/mental health treatment information, inmates' statements, were redacted." Further, "the audio recordings include the inmates' name, identification numbers, cell/unit assignments [suicide watch/medical/segregation from population], and reasons for the use of the restraint chair." You posit that this information, both visual and audio has been withheld under the CORI Act, because the information is likely to identify the subject inmates/d etainees.

Maria Romero, Esq. SPR19/1719 Page4 September 6, 2019 I find it is unclear how the withheld portions of these records are exempt under the CORI Act; specifically, it is uncertain how these records contain "information recorded in criminal proceedings that are not dismissed before ainignment" as described in G. L. c. 6, § 167 above. Exemption (c) Exemption (c) applies to: 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). The first clause creates a categorical exemption for personnel infomrntion that relates to an identifiable individual and is of a "personal nature." Id. at 434. Medical infonnation that is of a personal nature and relates to a specifically named individual is exempt from disclosure. Brogan v. School Comm. of Westport, 401 Mass. 306, 308 (1987); Globe Newspaper Co., 388 Mass. at 438. Generally, medical information will be of a sufficiently personal nature to warrant exemption. Globe Newspaper Co., 338 Mass. at 432-34. There is a strong public policy in Massachusetts that favors confidentiality as to medical data about a person's body. Globe Newspaper Co. v. Chief Medical Examiner, 404 Mass. 132, 135 (1987). The Department's April 23rd and June 7th responses indicate that medical and private information concerning the subject-inmates/detainees of the recordings was redacted from the video and audio recordings. You explain that the videos depict incarcerated individuals on either suicide watch or mental health watch. Specifically, you state, "[m]ost of the individuals were naked during portions [ of] the recordings. One individual had self-hanned and had open wounds. Another individual smeared feces on his/her body and had pre-existing injuries on his/her limbs." Additionally, you indicate that the reasons for the use of the restraint chair include " ... descriptions of self-hann, threats of suicide, disciplinary infractions, violent and/or non compliant behavior, and mental or medical assessments." In an August 28th telephone call to a Public Records Division attorney, you explained that the recording including the audio which includes utterances of inmates to cotTectional officers, as well as the taking of vitals and medical treatment by the medical staff. It is your contention that because Mr. Kershner already received "use of force" packets of paper records, he may be able to discern and identify the subjects of the recordings and the medical issues of the subjects. You conclude that all medical information verbally communicated or treatment visually recorded is baiTed from disclosure. See Com v. Brandwein, 435 Mass. 623 (2002) ( disclosure of confidential medical infonnation may constitute an actionable invasion of privacy claim). I find that the

Maria Romero, Esq. SPR19/1719 Page 5 September 6, 2019 Department met its burden in withholding the audio and video recording that reveals medical information, including the physical and mental health conditions of identified subjects. Second clause of (c) -privacy 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. Tones 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 does not protect all data relating to specifically named individuals. Rather, there are factors to consider when assessing the weight of the privacy interest at stake: (1) whether disclosure would result in personal embarrassment to an individual of normal sensibilities; (2) whether the materials sought contain intimate details of a highly personal nature; and (3) whether the same information is available from other sources. See People for the Ethical Treatment of Animals (PETA) v. Dep't of Agric. Res., 477 Mass. 280,292 (2017). The types of personal information which the second clause of this exemption is designed ·to protect includes: marital status, paternity, substance abuse, government assistance, family disputes and reputation. Id. at 292 n.13; see also Doe v. Registrar of Motor Vehicles, 26 Mass. App. Ct. 415,427 (1988) (holding that a motor vehicle licensee has a privacy interest in disclosure of his social security number). This clause requires a balancing test which provides that where the public interest in obtaining the requested information substantially outweighs the seriousness of any invasion of privacy, the private interest in preventing disclosure must yield. PETA, 477 Mass. at 291. The public has a recognized interest in knowing whether public servants are carrying out their duties in a law-abiding and efficient manner. Id. at 292. The Department also claims that the full images and majority of the audio recording of the subject inmates was redacted because disclosure of this information c011stitutes an unwarranted invasion of privacy, and that the extremely personal nature of the recordings outweighs any public interest in disclosure. You assert, " ... the recordings depict incarcerated individuals in very intimate scenarios and reveal highly personal matters." In your April and June responses, as well as during your conversation with an attorney in this office, you explained that the individuals were naked during the recordings, including one individual who had self harmed and had open wounds. Another individual, you explained, smeared feces on his/her body and had pre-existing injuries to his/her limb. It is my understanding that the Department contends that if it were to release the full images of individuals who are disrobed and in compromising situations with pre-existing injuries, both mental and/or physical, would likely result in personal embarrassment of the

Maria Romero, Esq. SPR19/1719 Page 6 September 6, 2019 subject individual, if the images and audio were disclosed. The Department posits that this info1mation is precisely the type of information that is considered an unwarranted invasion of their privacy. The audio portions of the recordings withheld communicate medical observations, and physical medical and mental health treatment plans that were withheld as medical information under the first clause of Exemption ( c); but also, inmates' statements of threat of hmm, and infmmation concerning the inmates' family members and personal information under the second clause of Exemption ( c ). I find that the Department has met its burden to withhold the above visual and audio infonnation from the "use of force" recordings under the privacy clause of Exemption ( c) concerning identified subjects. Withholding of identifying information; additional audio recordings In his August 2211 d petition, Mr. Kershner asserts, in part: " ... [r ]ather than simply blur the faces of the inmates in question ... [the Department] had digitally inserted a large black oval in the center of the screen whenever an inmate is present. This highly unusual method renders the inmate's entire body invisible and effectively blots out most of the other action during the recorded sequences." Although I found portions of the responsive records may be withheld under Exemption ( c) , I find it is unclear whether the Department may provide less-redacted versions of these records that only withhold portions of the records that identify the subjects. See Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are nan-owly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § lO(a). Mr. Kershner also notes in his appeal that that the Department released certain videos with "no audio at all." The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian ofrecords at the time of the request. See G. L. c. 66, § lO(a)(ii). Based on the issues raised in Mr. Kershner's appeal, I find the Department must clarify whether additional responsive audio recordings exist or whether the Department withheld these recordings under an exemption. See G. L. c. 66, § lO(a)(ii), (b)(ii). Conclusion Accordingly, the Department must provide Mr. Kershner a response in a manner consistent with this order, the Public Records Law, and its Regulations within IO 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.

Maria Romero, Esq. SPR19/1719 Page 7 September 6, 2019 Sincerely, ~~ Supervisor of Records cc: Seth Kershner