Brandon Stokes v. Plymouth County Sheriff's Office (SPR 20240847)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 1, 2024 SPR24/0847 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 Brandon Stokes, of 7 News WHDH 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 27, 2024, Mr. Stokes requested “all video from within a Plymouth County Sheriff’s transport van showing an incident on 2/26/24 in which a suspect escaped while stuck in traffic in Waltham.” 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, Mr. Stokes appealed, and this case was opened as a result. Subsequent to the opening of this appeal, in an email to this office and Mr. Stokes on March 26, 2024, the Department provided a supplemental response, also citing Exemption (a) and CORI for withholding the records. See G. L. c. 4, § 7(26)(a). 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 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. SPR24/0847 Page 2 April 1, 2024 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 March 12th and March 26th Responses 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). In its March 26th response, the Department explains that “responsive records include extensive video surveillance of the charged criminal conduct which is not otherwise within the public domain.” The Department also cites Exemption (a) and CORI for withholding the records. See G. L. c. 4, § 7(26)(a); G. L. c. 6 § 167. 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 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. Criminal Offender Record Information (CORI) The current definition of CORI is as follows:

Patrick C. Lee, Esq. SPR24/0847 Page 3 April 1, 2024 “Criminal offender record information,” records 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 be limited to information concerning persons who have attained the age of 18 and shall not include any information concerning criminal offenses or acts of delinquency committed by any person before he attained the age of 18; provided, however, that if a person under the age of 18 was adjudicated as an adult in superior court or adjudicated as an adult after transfer of a case from a juvenile session to another trial court department, information relating to such criminal offense shall be criminal offender record information. Criminal offender record information shall not include information concerning any offenses which are not punishable by incarceration. G. L. c. 6, § 167. In its March 26th response, the Department argues the following under CORI: [T]the records now are criminal offender record information (CORI) exempt from disclosure by statute. G.L. c. 4 §7 cl. Twenty-sixth (a) and c. 6 § 172. The legislature has chosen to use very broad language to define CORI: “records 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, … .” G.L. c. 6 §167 (emphasis added). G.L. c. 6 §172 limits dissemination of such material to criminal justice agencies and such other agencies or individuals authorized by statute to receive it. Based on the Department’s response, I find that the Department has not met its burden to withhold the responsive records under Exemption (a) and CORI. Specifically, it is not clear how the surveillance video footage constitutes “information recorded in criminal proceedings that are not dismissed before arraignment.” See G. L. c. 6, § 167. The Department must clarify this. Exemption (b) Exemption (b) permits the withholding of records that are: Related solely to internal personnel rules and practices of the government unit,

Patrick C. Lee, Esq. SPR24/0847 Page 4 April 1, 2024 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). In its March 12th response, 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 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).

Patrick C. Lee, Esq. SPR24/0847 Page 5 April 1, 2024 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. In its March 12th response, 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. Additionally, in its March 26th response, the Department further argues that “since the initial response, the United States government has charged the subject with a criminal offense of escaping from federal custody, in violation of 18 U.S.C. §751(a). This development strengthens the Department’s cited exemption under G.L. c.4 §7 cl. Twenty-sixth (f), as the federal government investigation and prosecution are on-going.” 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).

Patrick C. Lee, Esq. SPR24/0847 Page 6 April 1, 2024 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 Although portions of the records may fall within Exemptions (b), (f), and (n), 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 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).

Patrick C. Lee, Esq. SPR24/0847 Page 7 April 1, 2024 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: Brandon Stokes