Craig Cromartie v. Department of Correction - Legal Division (SPR 20210226)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 16, 2021 SPR21/0226 Kate Silvia Director of Communications Department of Correction 50 Maple Street Milford, MA 01757 Dear Ms. Silvia: I have received the petition of Craig Cromartie 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). On October 6, 2020, Mr. Cromartie requested the following records: “1. Photographs of [an identified individual]; 2. Incident reports dated June 24, 2020; 3. Dry cell reports from eyeball watch performed June 24, 2020 through June 30, 2020; 4. Lab Reports of requested illicit narcotics from test results June 24, 2020 through June 30, 2020; and 5. Video recordings from June 24, 2020 through June 30, 2020.” Previous appeal The requested records were the subject of a previous appeal. See SPR20/2183, Determination of the Supervisor of Records (November 19, 2020). In my November 19, 2020 determination, I ordered the Department to provide Mr. Cromartie with a response to the request, in a manner consistent with the order the Public Records Law and its Regulations. Subsequently, on January 15, 2021, the Department provided a response, which included certain records. The Department denied access to other records pursuant to Exemptions (a), (c), and (n) of the Public Records Law. G. L. c. 4, § 7(26)(a), (c), (n). Unsatisfied with the Department’s response, Mr. Cromartie petitioned this office and this appeal, SPR21/0226, 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 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 SPR21/0226 Page 2 February 16, 2021 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 Department’s January 15th response In its January 15, 2021 response, the Department enclosed records responsive to items 1- 3. With regard to item 4, the Department directed Mr. Cromartie to another office. The Department withheld video recordings, responsive to item 5, under Exemptions (a), (c), and (n). Citing the criminal offender record information (CORI) statute and regulation, the Department states, “[t]he requested videos of housing units and altercations between inmates depict the faces of inmates inside of a state prison, thereby making their identities ascertainable and thus, CORI information, exempt from disclosure.” The Department cites G. L. c. 6, §§ 167-178(b) and 103 C.M.R. 153. The Department further states, “. . . any disclosure of the requested videos, to the extent they may exist, is prohibited from dissemination pursuant to G.L. c. 4, §7(26)(a), (b) and (n).” Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records 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 Att’y 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

Kate Silvia SPR21/0226 Page 3 February 16, 2021 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. G. L. c. 6, § 167 provides in relevant part: [R]ecords 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 not include information concerning any offenses which are not punishable by incarceration. G. L. c. 6, § 167 (emphasis added). Based on the Department’s response, I find it has not met its burden to demonstrate how the video recordings are 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 regulation, 103 C.M.R. 153, permits the Department to withhold the video recordings 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).

Kate Silvia SPR21/0226 Page 4 February 16, 2021 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). 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 records under subsection (c) of section 10 of chapter 66, is likely to jeopardize public safety or cyber security. Exemption (n) allows for the withholding of certain records which if released would jeopardize public 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.” People for the Ethical Treatment of Animals (PETA) v. Dep’t of Agric. Res., 477 Mass. 280, 289-90 (2017). The second prong of Exemption (n) examines “the factual and contextual support for the

Kate Silvia SPR21/0226 Page 5 February 16, 2021 proposition that disclosure of the record is ‘likely to jeopardize public safety.’” Id. at 289-90. The PETA decision further provides that “[because 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. PETA also provides that “[t]hese two prongs of exemption (n) must be analyzed together, because there is an inverse correlation between them. That is, the more the record sought resembles the records enumerated in exemption (n), the lower the custodian’s burden in demonstrating ‘reasonable judgment’ and vice versa.” PETA at 290. The Department’s claims under Exemptions (b) and (n), did not contain the specificity required in a denial of access to public records. Instead, the Department merely states that the video recordings are exempt under Exemptions (b) and (n) without any further explanation as to the exemptions’ applicability to the requested records. The Department is not permitted to issue a blanket denial without providing any further information with respect to the requested records. As a result, I find the Department has not satisfied its burden in responding to this portion of the request. The Department is advised that a records custodian is required to not only cite an exemption, but to specifically explain the applicability of the exemption to the requested records in order to comply with the Public Records Law and its Regulations. Conclusion Accordingly, the Department is ordered to provide Mr. Cromartie with a response to the request, provided 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: Craig Cromartie Joseph F. Hennessey, Esq.