Kathy Curran v. Plymouth County Sheriff's Office (SPR 20240771)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 26, 2024 SPR24/0771 Patrick C. Lee, Esq. General Counsel Plymouth County Sheriff’s Department 24 Long Pond Road Plymouth, MA 02360 Dear Attorney Lee: I have received the petition of Kathy Curran, of NBC10 Boston, appealing the response of the Plymouth County Sheriff’s Department (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 26, 2024, Ms. Curran requested “a copy of all incident reports, surveillance video and video from department body-worn cameras involving the transport and escape of [a named individual] on February 26, 2024.” The Department responded on March 12, 2024, denying the request, and claiming that the responsive records were withheld pursuant to Exemptions (b), (f), and (n) of the Public Records Law. See G. L. c. 4, § 7(26)(b), (f), (n). Unsatisfied with the Department’s response, Ms. Curran appealed, and this case 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 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); 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. 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

Patrick C. Lee, Esq. SPR24/0771 Page 2 March 26, 2024 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 March 12th Response In its March 12, 2024 response, the Department cites Exemptions (b), (f) and (n) for withholding responsive records. See G. L. c. 4, § 7(26)(b), (f), (n). 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 Ret. 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 argues the following: Records responsive to [the] request include detailed descriptions/depictions of security procedures for responding to an incarcerated person who attempts to escape. Public dissemination of such procedures increases the risk that present or

Patrick C. Lee, Esq. SPR24/0771 Page 3 March 26, 2024 future incarcerated persons could use the records to circumvent the procedures and jeopardize public safety. Exemption (f) Exemption (f) permits the withholding of: investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest G. L. c. 4, § 7(26)(f). A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 371 Mass. 59, 62 (1976). Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Att’y Gen., 52 Mass. App. Ct. 244, 248 (2001); Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 290 n.18 (1979). Exemption (f) invites a “case-by- case consideration” of whether disclosure “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” See Reinstein, 378 Mass. at 289-90. Under Exemption (f), the Department argues the following: Disclosure of the records would reveal information about the operation of a correctional facility transportation vehicle’s camera system, including location of the cameras and what can and cannot be observed and recorded. Disclosure also would reveal the techniques of law enforcement officers who sought to prevent the escape. Public dissemination of such law enforcement methods would increase the risk that current or future inmates could circumvent the security procedures of the law enforcement agency. 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

Patrick C. Lee, Esq. SPR24/0771 Page 4 March 26, 2024 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.’” 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 “[b]ecause 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 argues the following: Responsive records include video surveillance of an incarcerated person escaping from a secure transportation vehicle en route to a correctional facility, as well as the response of the law enforcement officers. Public dissemination of the records would create a risk that present or future incarcerated persons could use the information to circumvent the security efforts of a law enforcement agency and jeopardize public safety. Such persons could use the surveillance video to study the security characteristics of the transportation vehicle and the security procedures of the officers in an effort to identify weaknesses to exploit. Publication of the video would be the equivalent to providing game film to the opposing team. Duty to Segregate; Identify the Records Although portions of the records may fall within the above claimed exemptions, it is unclear how the records can be withheld in their entirety. Particularly, it is uncertain how non- exempt information is inextricably intertwined with exempt information such that records cannot

Patrick C. Lee, Esq. SPR24/0771 Page 5 March 26, 2024 be segregated or redacted. See Reinstein, 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). Additionally, it is unclear from the Department’s response which specific records the Department intends to withhold. The Department must identify the records, categories of records, or portions of records it intends to withhold under Exemptions (b), (f), and (n). See G. L. c. 66, § 10(b)(iv) (a 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, including the specific exemption or exemptions upon which the withholding is based”). Conclusion Accordingly, the Department is ordered to provide Ms. Curran 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 the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Kathy Curran