Todd Wallack v. Hampden County Sheriff's Department (SPR 20250983)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 24, 2025 SPR25/0983 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 Appeals This request was the subject of prior appeals. See SPR25/0645 Determination of the Supervisor of Records (March 18, 2025) and SPR25/0755 Determination of the Supervisor of Records (April 2, 2025). In my April 2nd determination, I found that the Department had not met its burden to show that the records can be withheld fall under Exemptions (a) and (c) of the Public Records Law. The Department provided a response to Mr. Wallack on April 11, 2025. Unsatisfied with the response, Mr. Wallack petitioned this office and this appeal, SPR25/0983, 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). 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. SPR25/0983 Page 2 April 24, 2025 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. Current appeal In his April 10, 2025 appeal, Mr. Wallack states, “I wish to appeal the latest denial from the Hampden County Sheriff’s Office. The agency has cited two reasons in its denial: CORI. The agency did not cite any language in the CORI statute that specifically prohibits the disclosure of the records I requested ... Exemption c. The Massachusetts Supreme Judicial Court has ruled that jail phone calls are generally not confidential and that inmates have no expectation of privacy during these calls.” The Department’s April 11th response In its April 11, 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.”

Theresa S. Finnegan, Esq. SPR25/0983 Page 3 April 24, 2025 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: “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 CORI statute must be read as a whole and specifically includes incarceration records of an identifiable inmate. The definition of the CORI materials is not limited to sentence cited by the Supervisor, which states that the HCSO has not shown that the recorded calls are ‘information recorded in criminal proceedings that are not dismissed before arraignment.’ The statute also states that CORI information includes records pertaining to incarceration of an identifiable inmate.” 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

Theresa S. Finnegan, Esq. SPR25/0983 Page 4 April 24, 2025 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: In the present case the recorded phone calls sought by the requestor contain private conversations between the inmate and two other individuals with whom he has personal associations. The nature of the conversation is such that alleged witnesses are discussed and the intimate details of the inmates concerns and fears are expressed. The content of the highly personal phone call would likely be an embarrassment to the inmate and the people with whom he was conversing. Moreover, there is absolutely no benefit to the public in releasing the private conversations. Sharing the requested information is outweighed by the privacy interests of the participants in the calls. It is difficult to see how the public would benefit from hearing phone calls that have nothing to do with how state employees are running the facility and/or remaining accountable with their law enforcement duties... ...the HCSO’s position is that both parties are identifiable by name in the phone

Theresa S. Finnegan, Esq. SPR25/0983 Page 5 April 24, 2025 calls and the content of the calls are highly personal and likely to create embarrassment. The call log coupled with the names of the outside caller and potential witness being used repeatedly during the call meet the burden of showing that the recorded calls relate to identifiable individuals. Because the HCSO argues that the privacy interests of the inmate and the outside caller are at issue as explained above, the records cannot be redacted without the invasion of privacy. In camera inspection In order to facilitate a determination as to the applicability of the Department’s claims to withhold the requested records under Exemptions (a) and (c) of the Public Records Law, the Department must provide this office with an un-redacted copy of the responsive records for in camera inspection. After I complete my review of the documents, I will return the records to your custody and issue an opinion on the public or exempt nature of the records. See 950 C.M.R. 32.08(4). 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. Massachusetts 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. 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 Department is ordered to provide this office with an un-redacted copy of the responsive records for in camera inspection without delay.

Theresa S. Finnegan, Esq. SPR25/0983 Page 6 April 24, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Todd Wallack