Greta Jochem v. Hampden County Sheriff's Department (SPR 20243308)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 20, 2024 SPR24/3308 Theresa S. Finnegan, Esq. Assistant Superintendent/ General Counsel Hampden County Sheriff’s Office 627 Randall Road Ludlow, MA 01056 Dear Attorney Finnegan: I have received the petition of Greta Jochem, of The Republican/MassLive.com/ El Pueblo Latino, appealing the response of the Hampden County Sheriff’s Office (Office/HCSO) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 18, 2024, Ms. Jochem requested “any letters of character that [the] Sheriff ... has written in the last year about [a specified individual].” The Office responded on December 5, 2024. Unsatisfied with the Office’s response, Ms. Jochem petitioned this office, and this appeal, SPR24/3308, was opened as a result. Subsequent to the opening of this appeal, on December 9, 2024, the Office provided a further response to Ms. Jochem and this office. 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. If there are any fees associated with a response, a written good faith estimate must be 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

Theresa S. Finnegan, Esq. SPR24/3308 Page 2 December 20, 2024 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 December 5th and December 9th Responses In its December 5, 2024 response, the Office states that it is withholding a responsive letter pursuant to Exemption (c) of the Public Records Law. See G. L. c. 4, § 7(26)(c). In an email to this office and Ms. Jochem on December 9, 2024, the Office further elaborates on its claim for withholding the record pursuant to Exemption (c). 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). 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 December 5th response, under Exemption (c), the Office argues the following: We will not be providing the Sheriff’s letter regarding [the specified individual] as it is exempt from public disclosure under the privacy exemption of the public records law. Information relating to a specific individual that is highly personal in nature and may constitute an unwarranted invasion of personal privacy is

Theresa S. Finnegan, Esq. SPR24/3308 Page 3 December 20, 2024 exempted under the public records law. M.G.L. c. 4 § 7 (26) (c). The letter was written for a limited purpose for the court, and was not for public dissemination. This letter is highly personal in nature for [the individual] and making it public would constitute an unwarranted invasion of his privacy. Additionally, in its December 9th response, the Office further argues the following: [T]he HCSO has taken the position that the letter written at the request of [the individual] attorney for the court’s reference is exempt from disclosure under the public records law. This letter was for the Judge, it was not read aloud in court or entered into evidence. Elected officials and other public officials are often asked to write letters at the request of others. Sometimes it is for professional references and sometimes it is at the request of attorneys or the court for the purpose of sentencing. These letters are designed to assist the court and are expected to be honest assessments of an individual to provide insight on a person who is before the court for sentencing. In order to ensure and encourage this important input to the court, these letters are usually limited in purpose for the judge to review. If all such letters were to become public, it may result in individuals being reluctant to assist the court or not as forthcoming in what they share. Many people request reference letters from the Sheriff for other reasons. These individuals are not expecting these letters to be shared with the public. It is the HSCO’s position that letters such as the one written at the request of [the individual’s] attorney for the court, are in the public interest as they assist the court in gaining a full picture of the individual before the court. To say that reference letters written by public officials are all public record and never exempt from disclosure would lead to floodgates of requests being made anytime a public official writes a letter to the court or a prospective employer these could be made public in violation of the privacy rights and expectations of the people who are the subject of the letters. This would be against public policy. In balancing out the privacy interests of [the individual] against the need for the public to read the contents of the Sheriff’s letter to the court regarding him, [the individual’s] privacy rights prevail. As indicated in Ms. Jochem’s appeal, the story was written that the Sheriff wrote a letter for the court on behalf of [the individual], what exactly the letter stated for the purposes of the judge’s review does not outweigh [the individual’s] privacy expectations, and cuts against public policy in so far as it would have a chilling effect public officials inclinations to write letters of reference to prospective employers as well as letters to the court. The Office is advised that the Supreme Judicial Court has held that Exemption (c) “clearly and unambiguously states that the privacy exemption does not apply to an ‘investigation’ of law enforcement misconduct.” Eric Mack v. Dist. Att’y for the Bristol Dist., 494 Mass. 1, 12 (2024). Additionally, the Court held that the phrase “related to,” as used in Exemption (c), “is construed broadly.” Id. at 12 n.9. Specifically, the Court held that the exemption did not apply to records related to an investigation into whether two police officers had committed any crimes or violated their department’s use of force policy. Id. at 12.

Theresa S. Finnegan, Esq. SPR24/3308 Page 4 December 20, 2024 Exemption (c) did not apply even where the investigation concluded there was no basis to charge the officers with crimes. Id. at 6. In this case, where the requested record involves a former employee of the Sheriff’s Office, it is unclear whether the withheld letter is “related to a law enforcement misconduct investigation.” See G. L. c. 4, § 7(26)(c). Additionally, based on the Office’s responses, it is unclear how the responsive letter, in its entirety, constitutes intimate details of a highly personal nature nor how disclosure would result in personal embarrassment to an individual of normal sensibilities. It is additionally uncertain whether any of the withheld information is available from other sources. PETA, 477 Mass. at 292. The Office must clarify these matters. It is further uncertain why the record must be withheld in its entirety. The Office must explain whether the record can be redacted so that segregable portions can be provided. See Reinstein, 378 Mass. at 289-90 (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Conclusion Accordingly, the Office is ordered to provide Ms. Jochem 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: Greta Jochem