Seth Kershner v. Hampshire County Sheriff's Department (SPR 20212267)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 17, 2021 SPR21/2267 Thomas Mitchell Records Access Director Hampshire Sheriff’s Office 205 Rocky Hill Road Northampton, MA 01061 Dear Mr. Mitchell: I have received the petition of Seth Kershner appealing the response of the Hampshire Sheriff’s Office (Office) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On December 24, 2020, Mr. Kershner requested, “copies of use of force reports for each time chemical agents were used by facility staff from January 11, 2019, to the date of this request.” Previous appeals This request was the subject of previous appeals. See SPR21/0841 Determination of the Supervisor of Records (April 15, 2021); SPR21/1435 Determination of the Supervisor of Records (June 17, 2021). The Office provided a response on September 3, 2021. Unsatisfied with the Office’s response, Mr. Kershner petitioned this office and SPR21/2267 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 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

Thomas Mitchell SPR21/2267 Page 2 September 17, 2021 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 September 3rd Response In the September 3, 2021 response, the Office cited Exemptions (b) and (n) for either redacting or withholding 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). The Office’s September 3rd response explained, “[f]irst, the Policies and Procedures relating to use of force by Correctional Officers are exempt from disclosure under M.G.L.c. 4, §7

Thomas Mitchell SPR21/2267 Page 3 September 17, 2021 (26) (b) Exemption (b) applies to records that are related solely to internal personnel rules and practices of the government unit.” The Office further explained that, “[d]issemination of Policies and Procedures related to use of force use of force would ineluctably disclose information regarding the procedures used by correctional officers during law enforcement efforts and hence relate solely to the internal workings of the Hampshire Sheriff's Office. Moreover, the disclosure of such Policies and Procedures could prove detrimental to the Hampshire Sheriff's Office law enforcement efforts, as knowledge of the ... security response procedure could enable an inmate to circumvent such procedures. In addition, the release of these Policies and Procedures would lead to impermissible disclosure of the manner and means utilized by correctional officers to effect cell extractions and other responses to emergencies involving use of force.” Based on the Office’s response, it is unclear how “the Policies and Procedures relating to use of force” relate solely to internal personnel rules and practices of the government unit. In addition, it is unclear how the records can be withheld in their entirety. See Reinstein v. Police Comm’r of Boston, 378 Mass. at 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any nonexempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). The Office must further clarify this. 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. 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. at 289-90. The PETA decision further provides that “[b]ecause the records custodian must exercise

Thomas Mitchell SPR21/2267 Page 4 September 17, 2021 ‘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. The Office’s September 3rd response explained, “[s]econdly, Use of Force Policies and Procedures are exempt from disclosure under M.G.L.c. 4, Section 7, 26 (n) including ‘records, blueprints, plans; policies, procedures and schematic drawings which relate to the internal layout and structural elements, security measures, emergency preparedness, threats or vulnerability assessments, or any other records relating to the security or safety of persons or buildings, structures, facilities, utilities, transportation, cybersecurity 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 be or cybersecurity.’” The Office’s September 3rd response did not contain the specificity required in a denial of access to public records. It is unclear how the “Use of Force Policies and Procedures” closely resemble the examples of exempt records as listed in the statute. See PETA, 477 Mass. at 289- 90. Further, the Office cites Exemption (n) without any explanation of the applicability of the exemption to the responsive records. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). The Office must clarify this. Conclusion Accordingly, the Office is ordered to provide Mr. Kershner with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within 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: Seth Kershner