Michaela Roberta Martin Strout v. Essex County Sheriff's Department (SPR 20251779)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 8, 2025 SPR25/1779 Gretchen Grosky Public Information Officer Essex County Sheriff’s Office 20 Manning Avenue Middleton, MA 01949 Dear Ms. Grosky: I have received the petition of Attorney Michaela Roberta Martin Strout, of the Committee for Public Counsel Services, appealing the response of the Essex County Sheriff’s Office (Office/ECSD) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 19, 2025, Jenna Alexandra Lewis, also of the Committee for Public Counsel Services, requested: [1] The following internal affairs report numbers: IAD File No. 15/131[;] [2] Any and all internal affairs reports for sustained allegations of “Truthfulness or Professional Integrity” pertaining to the following [identified] officer[.] The Office provided a response on April 4, 2025. Unsatisfied with the Office’s response, Attorney Strout petitioned this office and this appeal, SPR25/1779, 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. 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 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

Gretchen Grosky SPR25/1779 Page 2 July 8, 2025 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 April 4th response In its April 4, 2025 response, the Office cited Exemptions (b), (c), and (f) of the Public Records Law to withhold the requested records. Current appeal In her appeal, Attorney Strout asserts, “[o]n April 4, 2025, ECSD responded withholding all responsive records. . . .We respectfully ask that the Supervisor order ECSD to produce the requested records in compliance with the public records law . . .” 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 government 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

Gretchen Grosky SPR25/1779 Page 3 July 8, 2025 codes were properly withheld as materials in which the public would have no legitimate interest or which would compromise security if disclosed). In its response, the Office stated, [t]he ECSD maintains policies applicable to personnel investigations that require confidentiality and the protection of personal information and in order to promote disclosure throughout the course of investigations. Such confidentiality provisions are intended to have, 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”). 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). Based on the Office’s response, it is unclear how all the requested records relate solely to its internal personnel rules and practices. Also, the Office did not provide supporting information to demonstrate how disclosure of the records would hinder the proper performance of the Office’s necessary government function. The Office must clarify these matters. 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). While statutorily exempting personnel information from the expansive definition of public records, the Legislature did not explicitly define “personnel [file] or information.” G. L. c. 4, § 7(26)(c). Judicial decisions advise that the term is neither rigid, nor exact, and that the determination is case-specific. Worcester Telegram & Gazette Corporation v. Chief of Police of Worcester, 58 Mass App Ct 1, 5 (2003). The custodian’s classification of materials as “personnel information” is not conclusive. Wakefield Teacher’s Association v. School Committee of Wakefield, 431 Mass. 792, 798 (2000). Instead, the nature or character of the documents, as opposed to the documents’ label, is crucial to the analysis. See Worcester Telegram & Gazette Corp., 436 Mass. at 386.

Gretchen Grosky SPR25/1779 Page 4 July 8, 2025 The Massachusetts Supreme Judicial Court (Court) has refined the analysis to be employed when considering the public record status of personnel records. The Court has held that personnel information that is “useful in making employment decisions regarding an employee” may be withheld pursuant to the first clause of exemption (c). Wakefield Teacher’s Association, 431 Mass. at 798, quoting Oregonian Publ. Co.v. Portland Sch. Dist. No. 1J, 329 Or. 401 (1999). The Court further defined those records that may be withheld as personnel information to include, “employment applications, employee work evaluations, disciplinary documentation, and promotion, demotion, or termination information pertaining to a particular employee.” Wakefield Teacher’s Association, 431 Mass. at 798. Further, 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. Exemption (c) did not apply even where the investigation concluded there was no basis to charge the officers with crimes. Id. at 6. In its response the Office advised, [i]t is the Department’s position that the information which you are seeking includes personnel and disciplinary information of a Sheriff’s Department employee outside of the definition of “law enforcement officers” performing police duties and functions as defined by G.L. c. 6E, § 1. 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.” [An identified individual] is not a “police officer” as defined by Massachusetts law and any investigations regarding truthfulness or professional integrity do not involve the performance of police duties and/or functions. Similarly, the ECSD is not, in its operation of the Essex County Sheriff’s Department, considered to be a “law enforcement agency” engaged in “police duties and functions.” G.L. c. 6E, § 1. SPR24/2926 Determination of the Supervisor of Records (December 12, 2024). Consequently, the report is exempt from disclosure under G.L. c. 4, § 7(26)(c). The Supervisor of Records has held that where a subject of the report was not a law enforcement officer, nor the Department a law enforcement agency, the report is not “related to a law enforcement misconduct investigation.” SPR24/2926 Determination of the Supervisor of Records (December 12, 2024). Upon review and based on the Eric Mack v. Dist. Att’y for the Bristol Dist., 494 Mass. 1, (2024) case finding that Exemption (c) shall not apply to a law enforcement misconduct investigation, it remains unclear how the Office may withhold the requested records under Exemption (c) of the Public Records Law. Further, it is not clear from the Office’s response how

Gretchen Grosky SPR25/1779 Page 5 July 8, 2025 the named individual is not a “law enforcement officer” nor how the Office is not a “law enforcement agency.” The Office must clarify these matters. Exemption (f) Exemption (f) permits the withholding of: investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest. G. L. c. 4, § 7(26)(f). A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 371 Mass. 59, 62 (1976). Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Att’y Gen., 52 Mass. App. Ct. 244, 248 (2001); Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 290 n.18 (1979). Exemption (f) invites a “case-by- case consideration” of whether disclosure “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” See Reinstein, 378 Mass. at 289-90. As a matter of course, witness provided information is essential to efficient and effective law enforcement. This exemption is intended to allow investigative officials to provide an assurance of confidentiality to private citizens so that they will speak openly and voluntarily about matters. Redactions may be appropriate where they serve to preserve the anonymity of the complainant and voluntary witnesses. Antell, 52 Mass. App. Ct. at 248; Reinstein, 378 Mass. at 290 n.18; Bougas, 371 Mass. at 62. Any information contained in a witness statement, which if disclosed would create a grave risk of directly or indirectly identifying the voluntary witness is subject to withholding. Globe Newspaper Co. v. Boston Ret. Bd., 388 Mass. 427, 438 (1983). The disclosure of the names and other identifying information of victims, complainants and voluntary witnesses may deter other potential witnesses and citizens from providing information to law enforcement agencies in future investigations. Therefore, Exemption (f) will allow the withholding of the name and identifying details of any victims, complainants and voluntary witnesses, and where the individuals can be indirectly identified even with redaction. To properly claim that Exemption (f) applies, a custodian must demonstrate that the disclosure of the records would have a prejudicial effect on its investigative efforts. This can be accomplished by describing how the records fall into one of three categories. These are the three categories that justify withholding records under Exemption (f):

Gretchen Grosky SPR25/1779 Page 6 July 8, 2025  The records reflect an ongoing investigation, such that any information relating to an ongoing investigation that could potentially alert suspects or targets to the activities of investigative officials;  The records reflect internal techniques, procedures, or sources, such that their disclosure would prejudice not only ongoing, but future law enforcement efforts; or  Disclosure of records would cause a chilling effect, because the exemption allows investigative officials to provide an assurance of confidentiality to individuals so that they will speak openly about matters under investigation. Such records in this third category include: any details in statements that directly or indirectly identify a private citizen who volunteers as a witness; an entire statement if the identity of witnesses is known to the requestor; and information voluntarily provided by an individual or entity to aid in the investigation. In its response, the Office states: Particularly in the law enforcement setting, courts have recognized that the investigatory exemption’s purpose is, among other things, preventing the disclosure of confidential investigative techniques, procedures, or sources of information, and the encouragement of witnesses to come forward and speak freely and candidly concerning matters under investigation. Bougas v. Chief of Police of Lexington, 371 Mass. 59, 62 (1976); Globe Newspaper Co. v. Police Commr. of Boston, 648 N.E.2d 419 (1995). In short, the very foundation and premise of the Department’s administrative Internal Affairs inquiries is one of confidentiality. In fact, that is exactly what the parties and witnesses are advised by investigators during the course of the investigation. In so doing, employees of the Department are both encouraged, and can feel free to bring forward complaints involving sensitive allegations without fear of retaliation. Witnesses speak with candor, without fear of retribution, and without causing disruption in their work environment. One can only imagine the chilling effect on complainants and witnesses coming forward with knowledge that their co-workers and public at large will have the opportunity to review an Internal Affairs log of the case or disciplinary report at the end of the investigation, calling into question the very integrity of the investigation. The message to staff would be, please come forward with complaints and speak candidly with investigators as this is a confidential investigation, but with the following caveat; once the investigation is concluded your peers and public at large can make a public records request and will gain access to the information. Moreover, the disclosure runs the risk of potentially damaging an individual’s reputation and goodwill within the Department, and affecting morale in the Department whether the complaint is substantiated or not. In essence, you would be lifting the curtain as to how internal investigations which take place in a closed work environment at the jail are conducted. As courts have noted, it is not

Gretchen Grosky SPR25/1779 Page 7 July 8, 2025 unreasonable to think that disclosure of such sensitive information would make the same kind of investigation “difficult, if not impossible, in the future,” and as such, “[a]n assurance of confidentiality to those who voluntarily participate in such investigations likely produces candor.” See Wakefield, 431 Mass. at 802. Based on the Office’s response, it is unclear how disclosure of the requested records would disclose any confidential investigative techniques, procedures or sources of information. Further, it is unclear how the records in their entirety can be withheld under Exemption (f). Specifically, the Department did not demonstrate how disclosure of any segregable portion of the responsive records “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest[,]” as required under Exemption (f). It is additionally uncertain how the records cannot be redacted to preserve the anonymity of voluntary witnesses. 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). The Office must clarify. Further, based on the Office’s response, it is unclear what types of records it possesses that it is withholding from disclosure. To deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3)(c)(4). Here, the Office withheld responsive records without identifying each of the records. Therefore, the Office must identify the record(s) it has in its possession that the Office withheld under Exemptions (b), (c), and (f). Conclusion Accordingly, the Office is ordered to provide Attorney Strout with a response 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. Attorney Strout may appeal the substantive nature of the Office’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Michaela Roberta Martin Strout, Esq.