Todd Wallack v. Hampden County Sheriff's Department (SPR 20250755)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 2, 2025 SPR25/0755 Theresa S. Finnegan, Esq. Assistant Superintendent/General Counsel Hampden County Sheriff’s Department 627 Randall Road Ludlow, MA 01056 Dear Attorney Finnegan: I have received the petition of Todd Wallack, of WBUR, appealing the response of the Hampden 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, 2025, Mr. Wallack requested “... copies of three recorded telephone calls placed by [an identified individual] on the following dates and times: Sept. 3 19:16:23; Sept. 3 19:27:47; and Sept. 23 20:31:15. We are also seeking the associated call logs.” Prior Appeal This request was the subject of a prior appeal. See SPR25/0645 Determination of the Supervisor of Records (March 18, 2025). In my March 18th determination, I learned that the Department provided a further response to Mr. Wallack on March 13, 2025. Unsatisfied with the response, Mr. Wallack petitioned this office and this appeal, SPR25/0755, 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. 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. SPR25/0755 Page 2 April 2, 2025 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. Current appeal In his April 18, 2025 appeal, Mr. Wallack states, “I wish to appeal the latest response from the Hampden County Sheriff’s office for all the reasons stated in my initial appeal letter and supplemental email.” In his initial appeal letter dated March 7, 2025, Mr. Wallack advised, “I wish to appeal a denial from the Hampden County Sheriff’s Office for copies of three jail calls. The agency cited MGL c. 47 Section 7 (26) (a), (c) and (f) to deny the request in its entirety. I do not believe any of the exemptions apply.” The Department’s March 13th response In its March 13, 2025 response, the Department cited Exemptions (a) and (c) of the Public Records Law in support of withholding the requested records. 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, 3 77 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

Theresa S. Finnegan, Esq. SPR25/0755 Page 3 April 2, 2025 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: “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. . . . G. L. c. 6, § 167. Under Exemption (a), the Department stated, “[t]he records Mr. Wallack is requesting do fall within the definition of CORI, in that they are records compiled by the Sheriff’s Department, a criminal justice agency, as the result of the initiation of a criminal proceeding and concern an identifiable individual and relate to his incarceration.” The statute, G. L. c. 6, § 167, referenced by the Department regards dissemination of criminal offender record information. Upon review, it is unclear how the Department is permitted to withhold the requested records. Specifically, based on the Department’s response, the Department has not met its burden to show that the records fall within the CORI Act. The Department has not demonstrated that the withheld records constitute “information recorded in criminal proceedings that are not dismissed before arraignment” as defined in G. L. c. 6, § 167. The Department must clarify this matter.

Theresa S. Finnegan, Esq. SPR25/0755 Page 4 April 2, 2025 Exemption (c) Exemption (c) permits the withholding of: 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). The types of personal information which this exemption is designed to protect includes: marital status, paternity, substance abuse, government assistance, family disputes and reputation. Id. at 292 n.13; see also Doe v. Registrar of Motor Vehicles, 26 Mass. App. Ct. 415, 427 (1988) (holding that a motor vehicle licensee has a privacy interest in disclosure of his social security number). This exemption requires 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 response, the Department asserted the following: Mr. Wallack’s reliance on the case, In the Matter of a Grand Jury Subpoena 454 Mass. 685 (2009) is misplaced. Mr. Wallack cites this case in support of his argument that recorded jail calls are public record. In fact, the case actually supports the opposite conclusion. More specifically, that case addresses Fourth Amendment concerns relative to the Sheriff providing recorded phone calls to the Grand Jury pursuant to a subpoena. In that case the court held that the Sheriff must turn the recorded calls over to the Grand Jury pursuant to the subpoena despite the privacy interests of the inmate due to the Grand Jury’s broad

Theresa S. Finnegan, Esq. SPR25/0755 Page 5 April 2, 2025 investigatory powers related to a criminal matter. This case was not decided in the context of a public records request. In fact, it bolsters the idea that these records have a privacy interest attached to them that is significant enough for the Court to acknowledge that the Sheriff’s have a right to demand a Grand Jury Subpoena in order to turn over inmate recorded phone calls. In fact, the Sheriff’s department will not provide any such records without a Grand Jury Subpoena or a court order under a Rule 17 motion for third party records. ... these records would be exempt under the privacy exemption contained in G.L. c. 4 section 7 (26) (c). The second clause of Section (c) speaks directly to unwarranted invasions of personal privacy. In fact, the Office of the Secretary of State Public Information Division supervisors have consistently opined that inmate visitor logs are exempt from public disclosure under this exemption. See SPR12/017 determination dated 7/23/2012, SPR03/622 determination dated January 8, 2004, SPR10/116 determination dated June 24, 2010. In so doing the Supervisor of Records in these cases have determined that there is privacy interest with regard to ones personal associations. Following this logic, the recorded phone calls of inmates with others would be an even more invasion upon privacy of both participants in the call than would a visitors log. Accordingly, the Hampden County Sheriff’s Office is asking the Supervisor to make the determination that the record’s Mr. Wallack seeks are subject to the privacy exemption. Although, the Department indicates that the requested records constitute private information, it is unclear how the records, in their entirety, contain intimate details of a highly personal nature, nor how disclosure would result in personal embarrassment to an individual of normal sensibilities. It is also not clear whether this information is available from other sources. PETA, 477 Mass. at 292. Further, the Department did not provide information with respect to examining whether the public interest in obtaining the requested information outweighs the seriousness of any invasion of privacy. Id. Segregable portions With respect to the content of the recordings, the Department indicates “... calls of inmates with others would be an even more invasion upon privacy of both participants in the call...” However, the Department has not established why it cannot provide the portions of the recordings that capture only [the identified individual’s] part of the conversation. In addition, even if other portions of the conversations pertain to topics that may invoke privacy interests, the Department has not demonstrated whether it can address these concerns by redacting the records in accordance with Exemption (c). See PETA, 477 Mass. at 291. Consequently, the Department must clarify whether segregable portions can be provided. 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). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a).

Theresa S. Finnegan, Esq. SPR25/0755 Page 6 April 2, 2025 Accordingly, I find that the Department has not met its burden to withhold responsive records, in their entirety, under Exemptions (a) and (c) of the Public Records Law. Conclusion Accordingly, the Department is ordered to provide Mr. Wallack 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. Mr. Wallack may appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Todd Wallack