Christopher King, J.D. v. Department of Correction - Legal Division (SPR 20200068)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supen•lsor ofR ecords January 28, 2020 SPR20/0068 Kate M. Silvia Director of Communications Depaiiment of Correction 50 Maple Street, Suite 3 Milford, MA 01757 Dear Ms. Silvia: I have received the petition of Christopher Kingi J .D. appealing the response of the Depmiment of Correction (Department) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, on December 9, 2019, Mr. King requested 8 categories of records. It appears this appeal pertains to item 1, requesting "[a] copy of the video of the 3-11 shift at Souza-Baranowski Sector N2 commencing at 5:15pm 13 November 13, 2019 and continuing therefrom until 8pm of the same day, date and time." The Department denied access to the responsive record pursuant to Exemptions (a) and (b) of the Public Records Law. G. L. c. 4, § 7(26)(a), (b). Unsatisfied with the Depaiiment's response, Mr. Kirig petitioned this office and this appeal, SPR20/0068, was opened as a result. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all govermnental 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, § IO(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 p01iion of the responsive record. If there are any fees associated with a response a written, good faith estimate must be 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

Kate M. Silvia SPR20/0068 Page 2 January 28, 2020 provided. G. L. c. 66, § 1O (b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Department's 19111 response In its December 19, 2019 response, the Depatiment indicates that the video surveillance records are not public records and are exempt under Exemptions (a) and (b). Exemption (a) 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 Comi, 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. Under Exemption (a), the Department states that" ... surveillance videos depicting activity within a housing unit portray images of inmates housed at SBCC, which is prohibited from dissemination under ... the CORI statute and 103 CMR 153. Also, 103 CMR 157.10(3), which governs access to evaluative information by third parties, would apply to any video." The Depatiment cited the Criminal Offender Record Information (CORI) Act, G. L. c. 6, § 167, as well as 103 C.M.R. 153 and 103 C.M.R. 157.10(3), to withhold the video recording. The updated definition of CORI states: [R]ecords and data in any communicable form compiled by a Massachusetts criminal justice agency which concern an identifiable individual and relate to the

Kate M. Silvia SPR20/0068 Page 3 January 28, 2020 nature or disposition of a criminal charge,.an a11'est, 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 not include information concerning any offenses which are not punishable by incarceration. G. L. c. 6, § 167. Based on the Department's response, I find it has not met its burden to demonstrate how the video recording is exempt under the CORI Act. Specifically, it is unclear how it is "information recorded in criminal proceedings that are not dismissed before arraignment," as described above. It is additionally uncertain how the cited regulations, 103 C.M.R. 153 and 103 C.M.R. 157 .10(3 ), permit the Depmiment to withhold the video from disclosure. Exemption (b) 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 Dep't 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 of Information Act). The courts have interpreted the federal exemption to allow withholding of materials that, ifreleased, 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 comis requires

Kate M. Silvia SPR20/0068 Page 4 January 28, 2020 a two-pronged test. Material is exempt if it is predominantly used internally and if disclosed 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). Under Exemption (b ), the Department asserts that the record is exempt, because the "[v ]idea taken within a correctional facility raises serious security concerns; as such videos contain images of sensitive security measures such as cell door locks and camera angles or blind spots. This information, if released, could be used to undermine the safety and security of the facilities, risking the safety of inmates and staff, as well as the public at large." The Department also posits that" ... release of the video may reveal the particular angle of the camera or disclose the location of a hidden surveillance camera. Although inmates may be aware that there are surveillance cameras at SBCC, they may not be aware of all of the locations of all .of the surveillance cameras. Release of the videos may disclose those locations, thereby hindering the [Depa1iment' s] ability to monitor SBCC in the future." To the extent that portions of the videos depict "internal personnel rules and practices," such as the portions showing sensitive security measures such as cell door locks, and the "proper performance of necessary governmental functions requires such withholding," I find the. Department may withhold those portions under Exemption (b ). However, it is unclear whether any portions of the video may be released that do not depict "internal personnel rules and practices" that impact the proper performance of necessary government functions, specifically the maintenance of a secure penal institution. 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). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10( a). Conclusion Accordingly, the Department is ordered to review the video, redact where necessary and provide Mr. King with responsive records, 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. Sincerely, ~~. Rebecca S. Murray Supervisor of Records cc: Christopher King