Brandon Stokes v. Bristol County Sheriff's Office (SPR 20231236)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 23, 2023 SPR23/1236 Lorraine J. Rousseau, Esq. Assistant District Attorney Bristol County Sheriff’s Office 400 Faunce Corner Road North Dartmouth, MA 02747 Dear Attorney Rousseau: I have received the petition of Brandon Stokes, of 7NEWS WHDH Boston, appealing the response of the Bristol District Attorney’s Office (Office) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 24, 2023, Mr. Stokes requested the following records: 1. Surveillance video from inside the two units involved (I ask that this include the first hour of surveillance from each unit, starting 10 minutes before guards decided to retreat and lock down the units); and 2. Correspondence between the Sheriff and other jail officials, guards, etc. This should include but not be limited to emails, memos, text messages, etc. any interior and exterior raw surveillance video you have of an incident that occurred at the Bristol County House of Corrections on 4/21/23 where a ‘large-scale inmate disturbance’ broke out after trying to move the inmates to different housing units. The incident was first reported around 10:30 a.m. Prior Appeal This request was the subject of a previous appeal. See SPR23/1079 Determination of the Supervisor of Records (June 2, 2023). The Office responded on May 23, 2023. Unsatisfied with the Office’s response, Mr. Stokes petitioned this office and this appeal, SPR23/1236, 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

Lorraine J. Rousseau, Esq. SPR23/1236 Page 2 June 23, 2023 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 agency or municipality 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) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding is based…”); 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). The Office’s May 23rd Response In its May 23, 2023 response, the Office stated that the records were being withheld pursuant to Exemption (a) of the Public Records Law. 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, 154 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-546 (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 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. Under Exemption (a), The Office cited the Criminal Offender Record Information (CORI) Act. The definition of CORI is as follows:

Lorraine J. Rousseau, Esq. SPR23/1236 Page 3 June 23, 2023 [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). In its response, the Office asserted, “[w]ith respect to surveillance video requested under both parts of your request (numbered 1 & 2 above), your request must be denied as the video recording requested contains the images of inmates and the BCSO does not have the capability of redacting or otherwise editing portions of any video recording, including housing unit video surveillance recordings. Inmate records constitute Criminal Offender Record Information (‘CORI’), G.L. c. 6, §§ 167 et seq., 803 C.M.R. 2.00, et seq. CORI is exempt from disclosure pursuant ‘specifically or by necessary implication exempted from disclosure by statute’. One statute covered by this exemption is G.L. c. 6, §§ 167 to 178, which provides that CORI is not available generally to the public. 803 C.M.R. 2.02.” The Office also stated, “[w]ith respect to the second part of your request, correspondence between the Sheriff and jail officials, guard, etc., the records are presently being assembled. Once the records have been assembled, they will be reviewed to determine whether information contained in the records are exempt from disclosure under the public records law, G.L. c. 7, § 26.” Based on the foregoing, I find the Ofice has not met its burden to demonstrate how the requested records are exempt under the CORI Act. Specifically, it is unclear how these records contain “information recorded in criminal proceedings that are not dismissed before arraignment,” as defined in G. L. c. 6, § 167 (emphasis added). Pursuant to the Public Records Law, the burden shall be on the records custodian to prove with specificity the exemption which applies. G. L. c. 66, § 10(b)(iv); see also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The Office did not meet its burden of demonstrating how the responsive records, in their entirety, are exempt from disclosure. 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). Where possible, the Office must produce any non-exempt segregable portions of the records. G. L. c. 66, § 10(a).

Lorraine J. Rousseau, Esq. SPR23/1236 Page 4 June 23, 2023 Consequently, I find the Office must provide the records in a manner consistent with the Public Records Law or identify an exemption that applies to withhold the records from disclosure. G. L. c. 66, § 10(b). Conclusion Accordingly, the Office is ordered to provide Mr. Stokes with a response to his request 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. Mr. Stokes may appeal the substantive nature of the Office’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Brandon Stokes