Eleonora Bianchi v. Bristol County Sheriff's Office (SPR 20251221)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 16, 2025 SPR25/1221 Michael C. Arnold Public Records Access Officer Bristol County’s Sheriff’s Office 400 Faunce Corner Road Dartmouth, MA 02747 Dear Mr. Arnold: I have received the petition of Anastasia Lennon, of The New Bedford Light, appealing the response of the Bristol County’s Sheriff’s Office (Office) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 30, 2025, Eleonora Bianchi, also of The New Bedford Light, requested the following: [1] All Immigration Detainer–Notice of Action forms (ICE Form I-247A or earlier I-247 variants) received by the Bristol County Sheriff’s Office between January 1, 2025, and April 30, 2025… [2] BCSO’s response to the ICE detainer notice of action forms… The Office responded on May 1, 2025. Unsatisfied with the Office’s response, Ms. Lennon petitioned this office, and this appeal, SPR25/1221, was opened as a result. Subsequent to the opening of this appeal, the Office provided a further response to Ms. Lennon and this office on May 5, 2025. 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 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 C. Arnold SPR25/1221 Page 2 May 16, 2025 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 May 1st and May 5th Responses In its May 1, 2025 response, the Office states that it is withholding responsive records pursuant to 8 C.F.R. § 236.6, as it operates through Exemption (a) of the Public Records Law. See G. L. c. 4, § 7(26)(a). In its May 5, 2025 response, the Office specifies that it is withholding “eleven (11) such detainers from Immigration and Customs Enforcement (ICE), a division of the Department of Homeland Security (DHS) during the time period requested.” The Office reiterates its claim that the records must be withheld pursuant to 8 C.F.R. § 236.6, and also claims that the records may be withheld as CORI, as those regulations and statute operate through Exemption (a) of the Public Records Law. See G. L. c. 4, § 7(26)(a). 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 individuals or entities to whom the records are to be provided; the statute must expressly limit

Michael C. Arnold SPR25/1221 Page 3 May 16, 2025 access to the listed individuals or entities. 8 C.F.R. 236.6 In its May 1st response, the Office argues that “the names and information relating to immigration detainees information is exempt from disclosure under G.L. c. 7, § 26(a), which exempts records that are ‘specifically or by necessary implication exempted from disclosure by statute.’ The statute covered by this exemption is 8 C.F.R. § 236.6.” The Office cites 8 C.F.R. § 236.6, a federal regulation promulgated by the Department of Homeland Security (DHS), which provides in pertinent part as follows: No person, including any state or local government entity or any privately operated detention facility, that houses, maintains, provides services to, or otherwise holds any detainee on behalf of the Service (whether by contract or otherwise), and no other person who by virtue of any official or contractual relationship with such person obtains information relating to any detainee, shall disclose or otherwise permit to be made public the name of, or other information relating to, such detainee. Such information shall be under the control of the Service and shall be subject to public disclosure only pursuant to the provisions of applicable federal laws, regulations and executive orders. Insofar as any documents or other records contain such information, such documents shall not be public records. This section applies to all persons and information identified or described in it, regardless of when such persons obtained such information, and applies to all requests for public disclosure of such information, including requests that are the subject of proceedings pending as of April 17, 2002. 8 C.F.R. § 236.6. In its May 5th response, the Office argues the following under 8 C.F.R. 236.6: [T]he documents themselves fall under an exception to the Public Records law, specifically that they are records which are “specifically or by necessary implication exempted from disclosure by statute,” G. L. c. 4, § 7(26)(a). [T]he documents themselves are not public records pursuant to 8 CFR 236.6, a regulation promulgated by DHS pursuant to 5 U.S.C. 301, 552, 552a; 6 U.S.C. 112(a)(2), 112(a)(3), 112(b)(l), 112(e), 202, 251, 279, 291; 8 U.S.C. 1103, 1182, 1224, 1225, 1226, 1227, 1231, 1232, 1324a, 1357, 1362, 1611; 18 U.S.C. 4002, 4013(c)(4); and 8 CFR part 2. . . . Under 8 CFR 236.6, the BCSO constitutes a state or local government entity that has an official relationship with persons or entities who house, maintain, provide services to, or otherwise hold detainees on behalf of ICE. While the BCSO no longer has a contract with ICE, the BCSO still maintains an official relationship

Michael C. Arnold SPR25/1221 Page 4 May 16, 2025 with ICE to the extent allowed by the laws of the United States and the Commonwealth of Massachusetts. At ICE’s request, the BCSO routinely provides ICE lists of individuals in custody. ICE, in turn, sends the BCSO I-247A “immigration detainers” of the type requested when ICE becomes aware, either from our lists or otherwise, that an individual subject to a detainer is in BCSO custody. The BCSO does not and cannot extend a subject’s detention past their Commonwealth-ordered release date based on these detainers [see Commonwealth v. Lunn, 477 Mass. 517 (2017)]. The BCSO does, however, “lodge” ICE detainers in order to notify ICE in a timely manner when individuals subject to a detainer are due to be released. Further, the BCSO then cooperates within the limits of Lunn when ICE seeks to have a detainee transferred directly from BCSO custody to ICE custody at the end of their Commonwealth-ordered detention. The BCSO, therefore, is an entity subject to 8 CFR 236.6 that by virtue of its official relationship with ICE obtains information relating to ICE detainees who are in BCSO custody, including their names and other information. Per 8 CFR 236.6, “Such information shall be under the control of the Service and shall be subject to public disclosure only pursuant to the provisions of applicable federal laws, regulations and executive orders. Insofar as any documents or other records contain such information, such documents shall not be public records.” (emphasis added). While the BCSO is sympathetic to the petitioners’ request that they be provided the documents with redactions, when a document under 8 CFR 236.6 contains information subject to its terms, the document itself is not a public record under the plain language of the regulation. The language of the regulation clearly appreciates the difference between the documents themselves and the information contained therein. DHS could easily have promulgated the regulation in such a manner to only exempt the information from public disclosure, but instead it exempts the document itself. The determination by DHS that the document itself is not a public record could not be clearer. Based on the information provided in the Office’s May 5th response, the Office has explained that it has an official relationship with persons or entities who house, maintain, provide services to or otherwise hold detainees on behalf of DHS. Additionally, the Office has explained that the responsive records contain the name of or other information relating to detainees. Consequently, the Office has demonstrated that the responsive records are the type of record contemplated under 8 C.F.R. § 236.6. Accordingly, where the Office has demonstrated that it is prohibited from releasing the immigration detainers under federal regulation, I find that the Office has met its burden to withhold the responsive records pursuant to 8 C.F.R. § 236.6, as it operates through Exemption (a) of the Massachusetts Public Records Law. See G. L. c. 4, § 7(26)(a). Criminal Offender Record Information (CORI) The current definition of CORI is as follows:

Michael C. Arnold SPR25/1221 Page 5 May 16, 2025 “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 May 5th response, under CORI, the Department argues the following: [P]ortions of the records constitute Criminal Offender Record Information (CORI) as defined in M.G.L. c. 6, § 167. Should you agree that the documents are not public records per the plain language of 8 CFR 236.6, this point is immaterial. Should [the Supervisor] consider ordering the BCSO to produce redacted documents, however, the combined redactions to satisfy both 8 CFR 236.6 and M.G.L. c. 6, § 167 would be so extensive as to effectively reduce our response to disclosing the number of detainers received, which we are already willing to do. . . . Regarding CORI, because the BCSO no longer has a contract with ICE, it lacks the authority to detain individuals subject to an I-247A detainer. The offenders at our Facilities are adults 18 years of age or older who are detained under criminal process issued by the courts of the Commonwealth of Massachusetts. This includes individuals held on bail, dangerousness, a probation detention, or serving a sentence. As a result, most of the information on form I-247A is also CORI protected. This is especially true of the information specifically requested by the petitioners at the bottom of page 1, including inmate #, estimated release date, date of last charge/conviction, and last offense charged/conviction.

Michael C. Arnold SPR25/1221 Page 6 May 16, 2025 Redacting and providing the I-247A form would therefore not only violate federal law, it would result in a document so heavily redacted so as to reduce the disclosure to little more than the number of detainers the BCSO has received in the time period requested. For these reasons, the BCSO respectfully requests that you deny the appeal, and rule that the BCSO has satisfied the request by disclosing the number ofl-247A or equivalent detainers received during the requested period. In this case, where the Office has met its burden to withhold the responsive records pursuant to 8 C.F.R. § 236.6, as it operates through Exemption (a) of the Public Records Law, I find it is unnecessary to address the Office’s claims for withholding the records under CORI. Conclusion Accordingly, I will consider this administrative appeal closed. If Ms. Lennon is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, §§ 10(b)(ix), 10A(c) -- (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Eleonora Bianchi Anastasia Lennon