Michael Shea v. Barnstable County Sheriff's Office (SPR 20242926)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 8, 2024 SPR24/2926 Michael B. Halpin, Esq. General Counsel Barnstable County Sheriff’s Office 6000 Sheriff’s Place Bourne, MA 02532 Dear Attorney Halpin: I have received the petition of Captain Michael Shea appealing the response of the Barnstable County Sheriff’s Office (Office/BCSO) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 13, 2024, Captain Shea requested “a copy of the investigative report prepared by Attorney Regina Ryan of Discrimination and Harassment Solutions, at the conclusion of the investigation of which I was the subject beginning on 3/4/23. Please also provide me with a copy of my recorded interview with her as part of the investigation.” Subsequent to the opening of this appeal, the Office provided a further response to this office on November 1, 2024. The Office responded on August 26, 2024. Unsatisfied with the Office’s response, Captain Shea petitioned this office, and this appeal, SPR24/2926, was opened as a result. Status of the 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, Captain Shea’s status will play no role in a determination as to whether the records should be disclosed or redacted under the Public Records Law. 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

Michael B. Halpin, Esq. SPR24/2926 Page 2 November 8, 2024 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. 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 August 26th and November 1st Responses In its August 26, 2024 response, the Office cites Exemptions (a), (b), (c) and (d) for withholding a responsive report. See G. L. c. 4, § 7(26)(a), (b), (c), (d). The Office reiterated its claims in an email to this office on November 1, 2024. 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, 545-46 (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

Michael B. Halpin, Esq. SPR24/2926 Page 3 November 8, 2024 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: “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. Additionally, in its August 26th response, the Office cites G. L. c. 151B, §3 (establishing the functions, powers and duties of the Massachusetts Commission Against Discrimination), and 804 C.M.R. 1.21 (conduct of public hearings before Massachusetts Commission Against Discrimination). In its August 26th response, under Exemption (a), with regard to the statutes and regulations cited above, the Office argues the following: The report is, as a result, also “specifically or by necessary implication [entirely] exempted from disclosure by statute” pursuant to G.L. c. 4, §7, Twenty Sixth, (a). See 804 CMR 1.21 and G. L. c. 151B, §3. The report also addresses other Barnstable County Correctional Facility (“BCCF”) policies and practices (concerning inmate classification, assignment, and security) that would, in whole or part, also be independently exempt from public disclosure under exemption (b),

Michael B. Halpin, Esq. SPR24/2926 Page 4 November 8, 2024 exemption (f), and other exemptions such as (n). Parts of the report relating to specifically identified and/or incarcerated person(s) are also, pursuant to Exemption (a), not a public record. See Twenty-Sixth, (a) and G. L. c. 6, § 167, et seq. (CORI). In addition to CORI, the report contains and/or implicates medical and other personal information and BCCF law enforcement concerns that are separately/independently protected from disclosure by G.L. c. 4, §7, Twenty- Sixth, (c) and G.L. c. 4, §7, Twenty-Sixth, (f). 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). In its August 26th response, under Exemption (b), the Office argues the following: [T]he Barnstable County Sheriff’s Office (“BCSO”) maintains several policies that require strict confidentiality of harassment-related inquiries. For example, Policy & Procedure 220.03 promises a “private interview” process, provides that the “confidentiality [of harassment investigations] shall be maintained[,]” and indicates that BCSO “shall endeavor to keep such information as confidential as it

Michael B. Halpin, Esq. SPR24/2926 Page 5 November 8, 2024 can[,]” in order not to “reveal case information to anyone not having proper professional use of such [information].” Policy & Procedure 220.03(G)(3), (4), (6). Moreover, relevant policies permit the BCSO alone “to the extent [it deems] appropriate[,]” to reveal the “results of the investigation” to complainants, subjects, and persons “with [a] need to know” – all to ensure that “investigations remain confidential … .” See Policy & Procedure 220.03(G)(3), (4), (6); Policy & Procedure 220.03(H) (1)-(3); and Employee Handbook, p. 19. Other policies applicable to personnel investigations also provide that “[as] far as practicable, the Sheriff’s Office will maintain confidentiality of the complaint and of personal information” and that “[c]onfidentiality shall be maintained for reasons including but not limited to … protecting witness(es ).” Policy & Procedure 201.01 206.01 (emphasis added). Such confidentiality provisions, together with accompanying nonretaliation protections, are intended to “ha[ve], among other benefits, the protection of the government’s ability to function effectively as an employer” by precluding the “disclosure of sensitive and careful investigation and analysis [that] would make the same kind of investigation and analysis difficult, if not impossible, in the future.” Wakefield Teachers Ass’n. v. School Comm., 431 Mass. 792, 802 (2000) (“Wakefield”). Such policies reflect BCSO adoption of and adherence to a broader public policy, codified by the promulgation of 804 CMR 1.21 by the Massachusetts Commission Against Discrimination, of maintaining investigative confidentiality, “exempt from public disclosure” of “investigative file[s] in every charge under investigation.”... Accordingly, the material you seek is, because it “relate[s] solely to internal personnel rules and practices of [a] government unit” and the “proper performance of … necessary government functions[,]” exempt from disclosure pursuant to G. L. c. 4, §7, Twenty-Sixth, (b). Exemption (c) Exemption (c) applies to: personnel and medical files or information and any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy; provided, however, that this subclause shall not apply to records related to a law enforcement misconduct investigation G. L. c. 4, § 7(26)(c). Massachusetts courts have found that “core categories of personnel information that are ‘useful in making employment decisions regarding an employee’” may be withheld from disclosure. Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 58 Mass. App. Ct. 1, 5 (2003). For example, “employment applications, employee work evaluations, disciplinary documentation, and promotion, demotion, or termination information pertaining to a particular employee,” may be withheld pursuant to Exemption (c). Wakefield Teachers Ass’n v. Sch. Comm., 431 Mass. 792, 798 (2000). The courts have also discussed specific categories of

Michael B. Halpin, Esq. SPR24/2926 Page 6 November 8, 2024 records that may be redacted under Exemption (c). See Globe Newspaper Co. v. Exec. Office of Admin. and Fin., Suffolk Sup. No. 11-01184-A (June 14, 2013). Analysis under Exemption (c) is subjective in nature and requires a balancing of the public’s right to know against the relevant privacy interests at stake. Torres v. Att’y Gen., 391 Mass. 1, 9 (1984); Att’y Gen. v. Assistant Comm’r of Real Prop. Dep’t, 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case-by-case basis. This exemption does not protect all data relating to specifically named individuals. Rather, there are factors to consider when assessing the weight of the privacy interest at stake: (1) whether disclosure would result in personal embarrassment to an individual of normal sensibilities; (2) whether the materials sought contain intimate details of a highly personal nature; and (3) whether the same information is available from other sources. See People for the Ethical Treatment of Animals (PETA) v. Dep’t of Agric. Res., 477 Mass. 280, 292 (2017). When analyzing a privacy claim, there is a balancing test which provides that where the public interest in obtaining the requested information substantially outweighs the seriousness of any invasion of privacy, the private interest in preventing disclosure must yield. PETA, 477 Mass. at 291. The public has a recognized interest in knowing whether public servants are carrying out their duties in a law abiding and efficient manner. Id. at 292. In its August 26th response, under Exemption (c), the Office argues the following: Like the report at issue in Wakefield, the confidential investigative report here is a “single, integrated report … [constituting] personnel … information” and is, in its entirety, exempt. Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 58 Mass. App. Ct. 1, 9 (2003) (“Worcester T&G”). Just like a report that results in disciplinary action, there is, in relation to a report that does not, “no doubt that such a report is personnel information as that term is used in the first category of the exemption. G. L. c. 4, § 7, Twenty-sixth (c).” Wakefield at 797 (quotation marks and citations omitted). It matters not whether such a report is (or is not) contained in an individual personnel file. Id. at 997 & n.13. It is also irrelevant that an employer may have “made no use of the [report] for [any] purpose.” Connolly v. Bromery, 15 Mass. App. Ct. 661, 665 (1983). In short, “[n]one of those circumstances changes the nature of the file fodder sought [here] …. or vitiate[s] the general policy … chosen to apply to the personnel material.” Id. The report is undeniably the type of information an employer may find “useful in making employment decisions regarding an employee” and, as such, falls within the “core categories of personnel information” entirely protected from public disclosure by Massachusetts law. Wakefield at 797 (citation omitted). . . . The report requested relates to workplace harassment allegations, made both by and against specifically identified employees and arising from and/or in the context of a workplace dispute between identified supervisor(s) and subordinate(s). The report consists primarily of attorney-summarized “private

Michael B. Halpin, Esq. SPR24/2926 Page 7 November 8, 2024 interview[s]” of five different BCSO employees, together with that attorney’s findings and conclusions. See Policy & Procedure 220.03 (G)(4). The report also includes specific information concerning individuals, incarcerated person(s), and employee family member(s). Accordingly, the report contains a plethora information that if disclosed would, (in part because of content and in part due to the confidence in which such information was conveyed) also constitute an unreasonable, substantial, and/or serious interference with the personal privacy of the identified and/or identifiable employees and/or incarcerated person(s) within the meaning of G.L. c. 4, §7, Twenty-Sixth, (c) (the privacy exemption). Additionally, in its November 1st response, the Office further argues the following: The report does not, as Shea suggests, concern “[p]olice misconduct … not exempt from disclosure.” Shea is not a “police officer” as defined by Massachusetts law and there is no allegation that he or any other BCSO employee was ever “performing police duties and functions.” . . . That Shea may, pursuant to G.L. c. 37, also be separately appointed as a deputy sheriff and/or be POST certified is irrelevant to this public record determination. Pursuant to G.L. c. 6E, §1 (adopted in 2020 in concert with the Legislature’s amendment of the personnel exemption), deputy sheriffs are only considered to be “law enforcement officers” when they are actually “performing police duties and functions.” Similarly, the BCSO is not, in its operation of the Barnstable County Correctional Facility, considered to be a “law enforcement agency” engaged in “police duties and functions.” G.L. c. 6E, §1. Exemption (d) Exemption (d) allows the withholding of: inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this subclause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based G. L. c. 4, § 7(26)(d). Exemption (d) is intended to avoid premature release of materials that could taint the deliberative process if disclosed. Its application is limited to recommendations on legal and policy matters found within an ongoing deliberative process. See Babets v. Sec’y of the Exec. Office of Human Servs., 403 Mass. 230, 237 n.8 (1988). Factual reports which are reasonably complete and inferences which can be drawn from factual investigations, even if labeled as opinions or conclusions, are not exempt as deliberative or policy making materials. G. L. c. 4, § 7(26)(d); see also Envtl. Prot. Agency v. Mink, 410 U.S. 73, 89 (1973) (purely factual matters used in the development of government policy are subject to disclosure).

Michael B. Halpin, Esq. SPR24/2926 Page 8 November 8, 2024 The Supreme Judicial Court (SJC) opined on the status of attorney work product under Exemption (d) in DaRosa v. City of New Bedford, 471 Mass. 446 (2015). In DaRosa, the SJC concluded that “opinion” work product that was prepared in anticipation of litigation or for trial by or for a party or its representative falls within the scope of Exemption (d). Id. at 448. It also concluded that “fact” work product under Mass. R. Civ. P. 26(b)(3) that was prepared in anticipation of litigation or trial falls within the scope of Exemption (d) where it is not a reasonably completed study or report or, if it is reasonably completed, where it is interwoven with opinions or analysis leading to opinions. Id. In its August 26th response, under Exemption (d), the Office argues the following: [T]he BCSO sought and obtained “Special counsel legal services” from Attorney Regina Ryan, who, in turn, ultimately produced, a report (with each page also marked “Confidential / Personnel”) concerning her opinions and conclusions on possible violations of BCSO policy and/or the law. Attorney Ryan’s services were unmistakably “undertaken for the purpose of obtaining legal advice [and/]or assistance” in determining whether violations of law and/or policy occurred. Additionally, Attorney Ryan’s outside legal services were procured “in [reasonable] anticipation of … litigation” contemplated from and/or threatened by one or more involved parties. DaRosa at 458 (“the need for nondisclosure of materials relating to the government’s preparation for litigation is even greater than the need for nondisclosure of deliberative materials in other contexts, because litigation is an adversarial process, where the disclosure of these materials might be used to the detriment of the government by its litigation adversary”). Her report is, as previously indicated, almost entirely opinion with summaries of private interviews “interwoven with opinions or analysis leading to [those] opinions.” Mack at 16. Accordingly, Attorney Ryan’s report is, in its entirety, plainly exempt from disclosure pursuant to the attorney-client privilege and the work product exemption provided by G. L. c. 4, §7, Twenty-Sixth, (d). In Camera Inspection In order to facilitate a determination as to the applicability of the claims made by the Office to withhold responsive record, the Office must provide this office with an un-redacted copy of the responsive record for in camera inspection. See 950 C.M.R. 32.08(4). After I complete my review of the record, I will return the record to the Office’s custody and issue an opinion on the public or exempt nature of the record. The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Mass. Comm’n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding.

Michael B. Halpin, Esq. SPR24/2926 Page 9 November 8, 2024 Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. Please be aware, any cover letter submitted to accompany the relevant records may be subject to disclosure. Order Accordingly, the Office is ordered to provide this office with an un-redacted copy of the responsive record for in camera inspection without delay. Sincerely, Manza Arthur Supervisor of Records cc: Captain Michael Shea