Emory Snell, Jr. v. Department of Correction - Legal Division (SPR 20210197)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 11, 2021 SPR21/0197 Kate Silvia Director of Communications Department of Correction 50 Maple Street, Suite 3 Milford, MA 01757 Dear Ms. Silvia: I have received the petition of Emory Snell, Jr. appealing the response of the Department of Correction (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Mr. Snell requested certain records, including “. . . any video surveillance” for an area “. . . feet from the School building of MCI-Shirley.” The Department provided Mr. Snell with a response on January 13, 2021, which he appealed to this office. Appeal In the Department’s January 13th response, it cited Exemption (b) in order to withhold the video surveillance recordings. The Department explained that under Exemption (b), “[v]ideo 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 indicated “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 MCI Shirley-Medium, 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 Department of Correction’s ability to monitor at MCI Shirley-Medium in the future.” 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 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 Silvia SPR21/0197 Page 2 February 11, 2021 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. 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 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 of Information 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 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). I find the Department has met its burden to show how disclosing any portion of the responsive video would depict “internal personnel rules and practices,” such as sensitive security

Kate Silvia SPR21/0197 Page 3 February 11, 2021 measures related to video monitoring of the facility, and the “proper performance of necessary governmental functions,” such as maintaining a secure penal institution, requires such withholding. Therefore, I find the Department has met its burden to withhold the responsive video under Exemption (b). Conclusion Accordingly, I will consider this administrative appeal closed. If Mr. Snell 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, §10(b) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Rebecca S. Murray Supervisor of Records cc: Emory Snell, Jr