Vernal Coleman v. Bristol County Sheriff's Office (SPR 20201090)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 17, 2020 SPR20/1083 Lorraine Rousseau, Esq. Records Access Officer Bristol County Sheriff’s Office 40 Faunce Corner Road North Dartmouth, MA 02747 Dear Attorney Rousseau: I have received the petition of Vernal Coleman of the Boston Globe appealing the response of the Bristol County District Attorney’s Office (Office/BCSO) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on May 13, 2020, Mr. Coleman requested the following records: “[1] Any/All digital recordings of outgoing calls made by detainees held inside Unit B of the C. Carlos Carreiro Immigration Detention Center from one hour before the start of the Friday May 1, 2020 incident involving Sheriff Thomas Hodgson, facility detainees and staff to one hour after detainees were removed from the unit by jail personnel. [2] Any/All recordings of video footage--security camera, cellular phone or video camera-- captured inside Unit B of the C. Carlos Carreiro Immigration Detention Center on from 30 minutes before a May 1, 2020 incident involving Sheriff Thomas Hodgson, facility detainees and facility staff to 30 minutes after detainees were removed from the unit by jail personnel. [3] Any/All emails sent from the sheriff’s office’s designated Health Services Administrator to the applicable ICE Enforcement and Removal Operations Field Office Director regarding ICE detainees, including, but not limited to, emails with the subject line: ‘Notification of COVID-19 High Risk Detainee,’ from February 15 to present. [4] Any/All email correspondence sent or received by Bristol County Sheriff Office personnel, including, but not limited to, the department Health Service Administrator, to staff of the Town of Dartmouth Board of Health, including, but not limited to director Chris Michaud (cmichaud@town.dartmouth.ma.us), that includes any [of] the following words: ‘coronavirus,’ ‘masks’ and ‘test’ from February 15 to present. 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

Lorraine Rousseau, Esq. SPR20/1090 Page 2 July 17, 2020 [5] Any/All email, voice memos and text message correspondence sent from Sheriff Thomas Hodgson regarding the May 1, 2020 incident between himself, jail personnel and ICE detainees inside Unit B of the C. Carlos Carreiro Immigration Detention Center from May 1, 2020 to present[.] [6] Any/all incident reports -- including but not limited to initial and supplementary reports -- compiled by the Bristol County Sheriff’s Office regarding the May 1, 2020 incident between Sheriff Thomas Hodgson and other jail personnel and ICE detainees inside Unit B of the C. Carlos Carreiro Immigration Detention Center[.]” The Office provided a response on May 14, 2020, denying access to responsive records pursuant to Exemptions (f) and (n) of the Public Records Law. G. L. c. 4, § 7(26)(f), (n). Unsatisfied with the Office’s response, Mr. Coleman petitioned this office and this appeal, SPR20/1090, was opened as a result. 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, § 10A(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, § 10(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. 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 Office’s May 14th response In its May 14, 2020 response, the Office asserts that the records are exempt from disclosure pursuant to Exemptions (f) and (n) of the Public Records Law. Exemption (f) Exemption (f) permits the withholding of: investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials

Lorraine Rousseau, Esq. SPR20/1090 Page 3 July 17, 2020 would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest G. L. c. 4, § 7(26)(f). A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 371 Mass 59, 62 (1976). Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Attorney Gen., 52 Mass. App. Ct. 244, 248 (2001); Reinstein, 378 Mass. at 290 n.18. Exemption (f) invites a “case-by-case consideration” of whether disclosure “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” See Reinstein, 378 Mass. at 289-90. Citing the language of Exemption (f), the Office indicates that “[t]he incident . . . is presently under investigation by the BCSO as well as the United States Immigration and Customs Enforcement (ICE). The records requested are central to the investigation and disclosure of such would be prejudicial to the efficacy of a thorough and efficient inquiry into the cause and subsequent action of the May 1st incident. Thus, until all investigations of the incident are concluded, records relating to the incident are exempt from disclosure as a public record under G.L. c. 4, § 7(26)(f).” Although the Office states that “. . . [t]he incident . . . is presently under investigation by the BCSO as well as the United States Immigration and Customs Enforcement (ICE) . . . [and] . . . disclosure of [the video] would be prejudicial to the efficacy of a thorough and efficient inquiry into the cause and subsequent action of the May 1st incident[,]” the Office does not provide supporting information to demonstrate how disclosure of any portion of the responsive record would compromise the investigation or “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest” as required to withhold records under Exemption (f). 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

Lorraine Rousseau, Esq. SPR20/1090 Page 4 July 17, 2020 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.’” PETA, 477 Mass. at 289-90. The second prong of Exemption (n) examines “the factual and contextual support for the proposition that disclosure of the record is ‘likely to jeopardize public safety.’” Id. 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. Under Exemption (n), the Office asserts that “[d]isclosure of video and/or photographs of the interior of the secure facility would be akin to releasing the internal layout of the facility, which the statute expressly forbids. Releasing interior videos and/or photographs would jeopardize the operational security required to maintain the effective, safe, and secure operation of the jail. It would provide the BCSO’s tactical and strategic ‘playbook’ for responding to emergency situations and inmate/detainee disturbances, which would compromise the BSCO’s ability to respond in a timely, effective and safe manner.” The Office further states that [r]eleasing the requested information could place BCSO inmates and staff at an unnecessary risk by giving the public an unfettered view of structural layouts, officer movements, and operational security measures. The release of any video and/or photographs would place the security and safety of the facility at risk by disclosing to the public camera placement and recording capabilities. The BSCO has a duty to maintain vigilant observation for safety, investigatory, and security concerns and to release the requested records could be used to circumvent the public’s interest in inmate and staff safety. As such, the requested records are exempt from disclosure under G.L. c. 4, § 7(26)(n).” To the extent that portions of the video reveal operational and/or sensitive security measures, I find the Office may withhold those portions under Exemption (n). However, it is unclear whether any portion of the video may be released that do not reveal any sensitive security information that a terrorist might find useful to maximize damage or jeopardize public safety. It is additionally uncertain whether any portion of the emails and incident reports can be segregated and non-exempt portions provided. 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). The Office must clarify these issues.

Lorraine Rousseau, Esq. SPR20/1090 Page 5 July 17, 2020 In addition, the Office did not identify the records, categories of records or portions of records in its possession responsive to Mr. Coleman’s request that it intends to withhold from disclosure under Exemptions (f) and (n). To deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3)(c)(4). Therefore, the Office must identify what type of record(s) it has in its possession that it withheld. Conclusion Accordingly, the Office is ordered to provide Mr. Coleman with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations as soon as practicable. 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: Vernal Coleman