Craig Cromartie v. Department of Correction - Legal Division (SPR 20210550)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 12, 2021 SPR21/0550 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 previous appeals. See SPR20/2183, Determination of the Supervisor of Records (November 19, 2020) and SPR21/0266 Determination of the Supervisor of Records (February 16, 2021). In my February 16th determination, I found that the Department had not met its burden to withhold video recordings under Exemptions (a), (b), and (n) of the Public Records Law. Accordingly, I ordered the Department to provide Mr. Cromartie with a response, in a manner consistent with the order, the Public Records Law and its Regulations. Subsequently, the Department provided a response on February 26, 2021, providing additional information regarding its Exemptions (b) and (n) claims. G. L. c. 4, § 7(26)(b), (n). Unsatisfied with the Department’s response, Mr. Cromartie petitioned this office and this appeal, SPR21/0550, was opened as a result. This appeal pertains to item 5 of the October 6th request. 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 SPR21/0550 Page 2 March 12, 2021 Purpose of request; identity of requestor Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Mr. Cromartie’s purpose in making the request has no bearing on the public status of any existing responsive records. It should be noted that the discovery process and the Public Records Law are two distinct and independent avenues for gaining access to records. The Massachusetts Supreme Judicial Court has held that while a party’s access to records may be limited by the Public Records Law, this may not preclude obtaining the records through discovery. Commonwealth v. Wanis, 426 Mass. 639 (1998). See also 950 C.M.R. 32.08(1)(a) (the administrative appeal process “shall not apply to records in which an individual, or a representative of the individual, has a unique right of access to the record through statutory, regulatory, judicial or other applicable means”). As such, Mr. Cromartie may wish to consider another means of seeking to obtain any existing responsive records. 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 Department’s February 26th response In its February 26, 2021 response, the Department asserts that the video recordings are exempt under Exemptions (b) and (n).

Kate Silvia SPR21/0550 Page 3 March 12, 2021 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). Under Exemption (b), the Department posits, “[m]aterial is exempt if it is used predominantly internally and if disclosed would significantly risk circumvention of agency regulations and statutes. [Marrera, 662 F. Supp. at 55] . . . It is axiomatic that the Department’s use and deployment of video cameras and recording equipment is predominantly for the internal use of Department officials and employees to assist in ensuring the safe and secure operation of its correctional facilities. Thus, the first prong of the analysis is met.” The Department further states, “[i]n addition to its predominant internal use, disclosure of the video would also reveal available camera angles and capabilities of the equipment. Other video would reveal locking mechanisms and security procedures related to the movement, restraint and vital sign checks of inmates. . . .” The Department indicates that there are also “. . . approximately 50 separate hand held videos ranging in time from approximately [] 30 seconds to 8 minutes (totaling approximately 1 hour and 17 minutes) that indicate the procedures used during restraint and vital sign checks, including revealing the number of officers used on various

Kate Silvia SPR21/0550 Page 4 March 12, 2021 shifts and dates, the equipment in the possession of officers, the type of door lock and visible key configuration.” 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 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. Under Exemption (n), the Department states, “[t]he video you have requested would provide a type of partial video ‘plan’ or ‘blueprint’ of the inside of a state correctional institution that encompasses the internal layout, many structural elements, and security measures of various portions of the Old Colony Correctional Center facility. As the Supreme Judicial Court has

Kate Silvia SPR21/0550 Page 5 March 12, 2021 indicated ‘the more the record sought resembles the records specifically enumerated in exemption (n), the lower the custodian’s burden in demonstrating ‘reasonable judgment, and vice versa.’[PETA, 477 Mass. at 290].” In regard to the second prong of the analysis, the Department cites Zander v. Dep’t of Justice, 885 F. Supp. 2d 1, 7-8 (D.D.C. 2012) and explains, “. . . the release of video containing various movements of a prisoner th[r]ough multiple areas of a medium security correctional facility and cell entries to conduct restraint and vital sign checks presents a danger to correctional officers charged with the task. Disclosure of the video may reveal methods and procedures which present clear risks to correctional employees. The Department’s position is that Exemption (n) also applies to permit nondisclosure.” Based on the Department’s response, I find it has met its burden to show how disclosing any portion of the responsive video recordings would depict “internal personnel rules and practices,” such as sensitive security 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 recordings under Exemption (b). Consequently, I will not opine on the Department’s Exemption (n) claim supporting non-disclosure of the responsive records. In his appeal petition, Mr. Cromartie inquires, “. . . could the video[ footage be provided by way to where they get viewed in a court setting where the footage will not be in the possession of my contact at all, and as long as it is in a court setting that involves the justice system is that possible?” Mr. Cromartie is advised that this inquiry falls outside the scope of the Public Records Law. Conclusion Accordingly, I will consider this administrative appeal closed. If Ms. Cromartie 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: Craig Cromartie