Joshua Dankoff v. Hampden County District Attorney's Office (SPR 20252881)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 14, 2025 SPR25/2881 John A. Wendel, Esq. Assistant District Attorney Records Access Officer Hampden District Attorney’s Office 50 State Street Springfield, MA 01103 Dear Attorney Wendel: I have received the petition of Joshua Dankoff appealing the response of the Hampden District Attorney’s Office (Office/HDAO) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 18, 2025, Mr. Dankoff requested the following 1. All records related to the DA Office’s policies regarding communication and information sharing between the office’s employees and federal agents/agencies, including, but not limited to, the U.S. Department of Homeland Security (DHS) and the U.S. Immigration and Customs Enforcement (ICE). This request covers any policies that are currently in effect or that have been in effect at any point on or after January 20, 2025. 2. The three most recent communications (e.g., emails, text messages, call logs or transcripts, or otherwise) between an office employee and a federal DHS or ICE employee. In addition, I request all records related to these communications, including, but not limited to, any records indicating that the office was made aware of the communications, discussions of their content or implications, evaluations them for compliance with office policies, identification or acknowledgement of any potential policy violations, and any internal responses, disciplinary actions, or follow-up measures resulting from these communications. 3. All records relating to incidents, if any, from January 20, 2025, to the day this request is responded to, in which an individual involved in a case handled by the DA’s office was taken into ICE custody. For each incident, the records request includes, but is not limited to, booking and transfer records, communications with ICE or other federal agencies, internal documentation or discussion of the transfer, and internal notes, memos, or documentation 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

John A. Wendel, Esq. SPR25/2881 Page 2 October 14, 2025 referencing communication with DHS or ICE. The Office responded on August 29, 2025, and assigned reference number P000426- 081825 to this request. On September 8, 2025, Mr. Dankoff provided the following clarifications: I can confirm that I am . . . “seeking information regarding HDAO policies regarding communication with the federal government regarding immigration enforcement and the extent to which HDAO employees have communicated with federal agents engaged in such enforcement.” . . . I would be interested in the three most recent communications, irrespective of the dates of those communications. The Office responded on September 19, 2025. Unsatisfied with the Office’s response, Mr. Dankoff petitioned this office, and this appeal, SPR25/2881, 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 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 September 19th Response In its September 19, 2025 response, the Office states the following: [T]he HDAO has no records responsive to your request. Regarding the first part of your request, the HDAO has no policies regarding communication with the federal government as to matters of immigration enforcement. Regarding the second part of your request, the HDAO does not track or record all of its

John A. Wendel, Esq. SPR25/2881 Page 3 October 14, 2025 communications with DHS and ICE, and thus it has no way of determining which communications were the last three. As some of the HDAO’s communications with DHS and ICE are telephonic, it is possible, and indeed likely, that the last three communications with DHS or ICE regarding immigration matters were telephonic, and that there is thus no record of them at all. Even if you were seeking only the last three email communications for which there are records, however, it remains impossible to determine which were the three most recent. The only way to locate those records would be to conduct a complete search of the servers containing records of the emails sent by all employees of the HDAO over the last several years. The HDAO does not control those servers, as they are maintained by another state agency, and the HDAO is incapable of conducting such a search. As for the third portion of your request, the HDAO does not track incidents in which individuals involved in its cases are taken into ICE custody and thus has no records of such incidents. Current Appeal In his appeal petition, Mr. Dankoff argues the following: The HDAO’s “no records” claim is implausible and inconsistent with its obligations under the Public Records Law, G.L. c. 66, § 10. The most troubling part of its response concerns communications, in response to question 2 in my request. . . . This reasoning is inadequate, as my request explicitly allowed for “emails, text messages, call logs or transcripts, or otherwise.” Even if some communications are telephonic, others likely occur by email, which are automatically timestamped and preserved in normal business operations. The public records law requires agencies in MGL Ch 66 sec. 10(a)(vii) to “suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency or municipality to produce records sought more efficiently and affordably.” The HDAO did not suggest a reasonable modification of the scope of the request and certainly did not offer to assist me in modifying the scope of the request. . . . Every modern email system preserves metadata, including timestamps, sender, and recipient information. The assertion that it is “impossible to determine which were the three most recent” disregards the fact that emails are clearly stamped and ordered by date and time, ignores how email systems function and suggests that the response was not made in good faith. . . . Furthermore, HCDAO’s assertion that it is “incapable of conducting such a search” because its servers are maintained by another state agency is not a valid justification for denying records. Agencies regularly coordinate with their IT administrators to perform keyword searches – in this case, for example, by

John A. Wendel, Esq. SPR25/2881 Page 4 October 14, 2025 searching “@ice.dhs.gov” or “@uscis.dhs.gov.” Producing the three most recent results, with appropriate redactions, would have been straightforward. The claim that a county DA office—an office that regularly searches through emails and other documents in its prosecutorial efforts—cannot access or search its own email database in response to a public record request does not reflect a reasonable effort to comply with the Public Records Law or to conduct even a basic search for clearly identifiable records (in this case emails). This approach is inconsistent with the requirement that agencies make a good-faith effort to locate and produce responsive records, not simply declare themselves “incapable.” I find this claim hard to believe, especially given that another DA office responded to a substantially similar request from CfJJ by conducting such a search of keywords (such as “@ice.dhs.gov” or “@uscis.dhs.gov”) and produced relevant records. Additionally, Mr. Dankoff requests that this office “direct HDAO to conduct and document reasonable searches at the very least of its email systems, perhaps using keyword- based searches suggested above to identify records in response to question 2.” Upon review of the appeal petition, I understand Mr. Dankoff objects only to the Office’s response to Item 2 of his request. Records in Existence; Possession, Custody, or Control Please be advised that the duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). Further, in accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). Additionally, public records must be maintained and kept in a manner that allows access by the general public, as they are subject to mandatory disclosure upon request. G. L. c. 66, § 10(a); see also Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979). Based on the Office’s response, and the additional clarification provided in Mr. Dankoff’s appeal petition, it is unclear whether the Office possesses records responsive to Item 2 of Mr. Dankoff’s request. If the Office does possess responsive records, it must either provide the records, or cite an exemption to the Public Records Law, and explain with specificity how such an exemption applies to withhold or redact the records. See G. L. c. 66, § 10(b)(iv) (a written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based”).

John A. Wendel, Esq. SPR25/2881 Page 5 October 14, 2025 Conclusion Accordingly, the Office is ordered to provide Mr. Dankoff 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. Dankoff may further 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: Joshua Dankoff