Hadley Barndollar v. Middlesex County Sheriff's Office (SPR 20253144)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 7, 2025 SPR25/3144 Megan J. McLatchey, Esq. Associate Legal Counsel Middlesex Sheriff’s Office 12 Gill Street, Suite 4700 Woburn, MA 01801 Dear Attorney McLatchey: I have received the petition of Hadley Barndollar, of MassLive, appealing the response of the Middlesex 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 September 8, 2025, Ms. Barndollar requested “[a]ny records dated Jan. 1, 2022 to present day about deaths of inmates in custody, including but not limited to incident reports and causes of death.” The Office responded on September 22, 2025. Unsatisfied with the Office’s response, Ms. Barndollar petitioned this office, and this appeal, SPR25/3144, 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 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

Megan J. McLatchey, Esq. SPR25/3144 Page 2 November 7, 2025 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 22nd Response In its September 22, 2025 response, the Office cites Exemptions (a), (c), (d), and (f) of the Public Records law, along with the attorney-client privilege, for withholding responsive records. See G. L. c. 4, § 7(26)(a), (c), (d), (f). 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 access to the listed individuals or entities. Records of Hospitals or Clinics In its response, the Office cites G. L. c. 111, § 70, which provides in pertinent part as follows: Hospitals or clinics subject to licensure by the department of public health or supported in whole or in part by the commonwealth, shall keep records of the treatment of the cases under their care including the medical history and nurses’ notes and, in the case of a patient brought to a hospital by an ambulance service licensed pursuant to chapter 111C, a copy of the call summary set forth in

Megan J. McLatchey, Esq. SPR25/3144 Page 3 November 7, 2025 paragraph (15) of subsection (b) of section 3 of said chapter 111C. ... Such records shall be in the custody of the hospital or clinic. Section ten of chapter sixty-six shall not apply to such records[.] G. L. c. 111, § 70. Health Insurance Portability and Accountability Act (HIPAA) HIPAA sets forth rules and regulations for the use and disclosure of protected health information by covered entities. The applicable regulation is part of the implementation of HIPAA, and provides the following definitions: Definitions. . . . Covered entity means: (1) A health plan. (2) A health care clearinghouse. (3) A health care provider who transmits any health information in electronic form in connection with a transaction covered by this subchapter. . . . Protected health information means individually identifiable health information: (1) Except as provided in paragraph (2) of this definition, that is: (i) Transmitted by electronic media; (ii) Maintained in electronic media; or (iii) Transmitted or maintained in any other form or medium. (2) Protected health information excludes individually identifiable health information: (i) In education records covered by the Family Educational Rights and Privacy Act, as amended, 20 U.S.C. 1232g; (ii) In records described at 20 U.S.C. 1232g(a)(4)(B)(iv); (iii) In employment records held by a covered entity in its role as employer; and (iv) Regarding a person who has been deceased for more than 50 years. 45 C.F.R. § 160.103. In its response, under the statue and regulations cited above, the Office argues the following: [T]he MSO objects to disclosure of the incident reports and causes of death pursuant to M.G.L. c. 4, § 7(26)(a), which exempts from disclosure documents “specifically or by necessary implication exempted from disclosure by statute.” The statutes relevant to the exemption under M.G.L c. 4 § 7(26)(a) are .M.G.L. c.

Megan J. McLatchey, Esq. SPR25/3144 Page 4 November 7, 2025 111, § 70 and the Health Insurance Portability and Accountability Act (“HIPAA”). See 45 C.F.R §160.103. The requested records are further wholly exempt from public disclosure pursuant to the HIPAA laws and associated Massachusetts statutes. Under M.G.L. c. 111, § 70, medical records maintained by “a hospital or clinic subject to licensure by the department of public health, or supported in whole or in part by the commonwealth,” are considered confidential and may not be disclosed under public records laws. While the MSO is not a hospital or clinic in the traditional sense, it operates a Health Services Unit that provides on-site medical care to individuals in MSO custody through licensed health care professionals, including board certified doctors and nurses. These services are funded wholly by the Commonwealth of Massachusetts. Moreover, the MSO Health Services Unit and medical care within the Middlesex Jail and House of Corrections (“MJHOC”) is subject to oversight and regulation by the Massachusetts Department of Public Health, including compliance with minimum health care standards and inspections. As such, the MSO’s Health Services Unit, and the health care providers operating within the MJI-IOC, can reasonably be interpreted as a clinic, supported in whole by the Commonwealth; thereby falling within the scope of M.G.L. c. 111, § 70. It is also important to note that in circumstances where an individual in MSO custody is transported to, and receives treatment from, an outside hospital or medical facility, the corresponding medical documentation, including the official cause of death determination, originates with and is maintained by that outside hospital. These requested records are the confidential medical records of the decedent, created and maintained by a licensed hospital that is subject to both HIPAA and Massachusetts confidentiality statutes. Accordingly, any request for the release of such records would require proper authorization under HIPAA or a valid court order. Therefore, to the extent that the request seeks records pertaining to the cause of death, those records are exempt from disclosure under M.G.L. c. 111, § 70 and HIPAA, as they are hospital medical records created and maintained outside of the MSO. To the extent that the request seeks records generated internally by the MSO’s Health Services Unit, those records are similarly exempt under the same statutory framework. In either case, the requested records are medical information and are expressly protected from disclosure absent authorization or a valid court order. Based on the information provided in the Office’s response, it is unclear how the Office constitutes a covered entity under HIPAA. It is further unclear how the withheld records constitute the types of records contemplated in the statute and regulation cited above. 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

Megan J. McLatchey, Esq. SPR25/3144 Page 5 November 7, 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). First Clause – Medical Medical information that is of a personal nature and relates to a specifically named individual may be exempt from disclosure. Brogan v. Sch. Comm. of Westport, 401 Mass. 306, 308 (1987); Globe Newspaper Co. v. Boston Ret. Bd., 388 Mass. 427, 438 (1983). Generally, medical information is sufficiently personal to warrant exemption. Globe Newspaper Co., 338 Mass. at 432-34. There is a strong public policy in Massachusetts that favors confidentiality as to medical data about a person’s body. Globe Newspaper Co. v. Chief Med. Exam’r, 404 Mass. 132, 135 (1987). Second Clause – Privacy Analysis under the second clause of 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 clause 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 the second clause of 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 clause 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, under Exemption (c), the Office argues the following: The MSO objects to the disclosure of the requested incident reports and causes of death pursuant to G.L. c. 4, §7 cl. 26(c) which exempts from the public record,

Megan J. McLatchey, Esq. SPR25/3144 Page 6 November 7, 2025 “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.” Medical information that is of a personal nature and relates to a specifically named individual may be exempt from disclosure. See Brogan v. Sch. Comm. of Westport, 401 Mass. 306, 308 (1987); Globe Newspaper Co. v. Boston Ret. Bd., 388 Mass. 427, 438 (1983). Generally, medical information is sufficiently personal to warrant exemption. See Globe Newspaper Co., 338 Mass. at 432-34. There is a strong public policy in Massachusetts that favors confidentiality as to medical data about a person’s body. See Globe Newspaper Co. v. Chief Med. Exam’r, 404 Mass. 132, 135 (1987). In Globe Newspaper Co. v. Boston Retirement Bd., 388 A1ass. 427, 431 (1983), the court concluded that M.G.L. c. 4, § 7(26)(c), created two categories of records exempt from public disclosure: first, “personnel and medical files or information,” and second, “other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy.” Here the requested records fall squarely into the first category and are thus categorically exempt from disclosure as “medical files or information.” The requested records, the incident reports and the cause of death, pertain to a specifically named individual and contain personal and sensitive health information, including detailed health conditions that have contributed to the named individual’s death and the manner of death. Further the requested records detail the health care and medical attention provided to the identified individual, including the medical procedures and tests the named individual received, the reason for such testing, a description of the treatment, medical history, and medical staffs observations and recommendations. To publicly disclose the requested records, even in a redacted manner, may still pose a risk of indirect identification due to the specificity and detail of the health information and the presence of identifying features; thus, the requested records remain exempt from disclosure under the Public Record Law. See Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 431 (1983). Disclosure of the requested records would be contrary to the public interest in preserving the confidentiality of the named individual’s medical information. Based on the Office’s response, although portions of the responsive records may constitute medical information, it is unclear how the responsive records, in their entirety, are intimate details of a highly personal nature nor how disclosure would result in personal embarrassment to an individual of normal sensibilities. It is additionally uncertain whether any of the withheld information is available from other sources. PETA, 477 Mass. at 292. Also, the Office did not provide additional information with respect to the balancing test, which examines whether the public interest in obtaining the requested information outweighs the seriousness of any invasion of privacy. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. See G. L. c. 66, § 10(a); Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-290 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). The Office must clarify these matters.

Megan J. McLatchey, Esq. SPR25/3144 Page 7 November 7, 2025 Exemption (d) Exemption (d) allows the withholding of: inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this subclause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based G. L. c. 4, § 7(26)(d). Exemption (d) is intended to avoid premature release of materials that could taint the deliberative process if disclosed. Its application is limited to recommendations on legal and policy matters found within an ongoing deliberative process. See Babets v. Sec’y of the Exec. Office of Human Servs., 403 Mass. 230, 237 n.8 (1988). Factual reports which are reasonably complete and inferences which can be drawn from factual investigations, even if labeled as opinions or conclusions, are not exempt as deliberative or policy making materials. G. L. c. 4, § 7(26)(d); see also Envtl. Prot. Agency v. Mink, 410 U.S. 73, 89 (1973) (purely factual matters used in the development of government policy are subject to disclosure). In its response, under Exemption (d), the Office argues the following: In further response to your public records request, the MSO states that it maintains MSO Policy and Procedure 617 - Procedures in the Event of Death or Serious Illness of an Inmate (“MSO PP 617”). At this time, MSO PP 617 is undergoing its annual review and revisions. Pursuant to G.L. c. 4, §7(26)(d), the public records law exempts from disclosure, “inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this subclause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based.” As the MSO PP 617 is currently in draft form and subject to ongoing review and revision, its disclosure at this time would reveal internal deliberations and preliminary policy considerations that have not yet been finalized. Upon the completion of the review and the finalization of MSO PP 617, the MSO will release the finalized version to you without you having to submit an additional public records request. Based on the Office’s response, although the withheld draft policy constitutes intra- agency memoranda, it is unclear whether any information contained in the responsive records may be factual in nature. Such information may be subject to disclosure, as Exemption (d) does not apply to such information. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. See G. L. c. 66, § l0(a); Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-290 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature).

Megan J. McLatchey, Esq. SPR25/3144 Page 8 November 7, 2025 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. In its response, under Exemption (f), the Office argues the following: In further response to your public records request, the MSO states that it is withholding the requested incident reports and causes of death pursuant to M.G.L. c. 4, §7 (26)(f) which 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.” The expectation under M.G.L. c. 4, §7 (26)(f), applies to both open and closed investigations. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 62 (I 976) at 63. Here, the requested records were compiled by the MSO in connection with its investigations into in-custody deaths. These records include detailed narrative accounts prepared by MSO personnel present at the time of the inmate’s death, describing the events leading up to the incident, the immediate response undertaken, and the subsequent handling of the matter. These reports were generated for the express purpose of documenting the MSO’s internal investigation and providing information to other investigatory agencies with concurrent jurisdiction, including external law enforcement agencies. Disclosure of these records would reveal internal investigatory techniques, protocols, and conclusions of the MSO and its staff. Release of this information would compromise both ongoing and future investigations by exposing the methods through which the MSO secures evidence, documents

Megan J. McLatchey, Esq. SPR25/3144 Page 9 November 7, 2025 events, and evaluates causation in in-custody deaths. Such disclosures could impair the ability of the MSO to effectively investigate incidents, respond to future events, and cooperate with outside investigatory bodies. Additionally, the requested records are not limited to their use in administrative factfinding. They are also prepared in anticipation of, and used as part of, formal legal processes. Specifically, these requested records are directly relevant to active and anticipated litigation, including civil actions arising out of in-custody deaths. The requested records are routinely relied upon in defense of the MSO and its personnel in civil proceedings, and in certain circumstances, they may be introduced in criminal or administrative proceedings. Accordingly, premature public disclosure of these materials would not only jeopardize investigatory integrity but would also prejudice the MSO's ability to litigate or defend ongoing and future matters. Although portions of the responsive records may fall under Exemption (f), it is uncertain how the record can be withheld in its entirety. For example, it is unclear how information such as the date and time of the incident, or the name of the responding officers would prejudice an ongoing investigation or prosecution. The Office must explain whether segregable portions of the records can be provided. See G. L. c. 66, § 10(a); 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). Common Law Attorney-Client Privilege A records custodian claiming the attorney-client privilege under the Public Records Law has the burden of not only proving the existence of an attorney-client relationship, but also (1) that the communications were received from a client during the course of the client’s search for legal advice from the attorney in his or her capacity as such; (2) that the communications were made in confidence; and (3) that the privilege as to these communications has not been waived. See Suffolk Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444, 450 n.9 (2007); see also Hanover Ins. Co. v. Rapo & Jepsen Ins. Servs., 449 Mass. 609, 619 (2007) (stating that the party seeking the attorney-client privilege has the burden to show the privilege applies). Records custodians seeking to invoke the common law attorney-client privilege “are required to produce detailed indices to support their claims of privilege.” Suffolk, 449 Mass. at 460. Pursuant to the Public Records Law, in assessing whether a records custodian has properly withheld records based on the claim of attorney-client privilege, the Supervisor of Records “shall not inspect the record but shall require, as part of the decision making process, that the agency or municipality provide a detailed description of the record, including the names of the author and recipients, the date, the substance of such record, and the grounds upon which the attorney-client privilege is being claimed.” G. L. c. 66, § 10A(a). In its response, under the attorney client privilege, the Office explains the following Furthermore, the MSO withholds all incident reports and cause of death information under the protection of attorney-client privilege. The Massachusetts

Megan J. McLatchey, Esq. SPR25/3144 Page 10 November 7, 2025 Supreme Judicial Court has held that confidential communications between governmental entities and their legal counsel undertaken for the purpose of obtaining legal advice or assistance are protected under the normal rules of the attorney-client privilege. See Suffolk Constr. Co. v. Div. of Capital Asset M’gmt., 449 Mass. 444, 449-50 (2007). The requested records, were received or prepared by MSO’s legal counsel to provide assistance and support to MSO officers and agents in the course of ongoing investigations, and/or created in the reasonable anticipation of litigation. The requested records include written correspondence, notes, legal opinions, internal memorandums, among other sensitive records. These records were made by, or provided to, MSO legal counsel with the subject line of “Attorney-Client Privileged Communication” indicating that such privilege has not been waived by the client. Disclosure of these records would undermine the attorney-client privilege and the work product doctrine. Based on the Office’s response, it is unclear which specific records have been withheld pursuant to the attorney-client privilege. Specifically, the Office must provide an index comprised of a detailed description of each record withheld or redacted pursuant to the attorney- client privilege, including the names of the author and recipients, the date, the substance of each record, and the grounds upon which the privilege is being claimed. See G. L. c. 66, § 10A(a). Further, the Office must clarify whether the communications were made during the course of the client’s search for legal advice from the attorney in his or her capacity as such, whether the communications were made in confidence, and that the privilege as to the communications has not been waived. See Suffolk, 449 Mass. at 450 n.9. Duty to Identify the Records Additionally, it is unclear from the Office’s response which specific records the Office intends to withhold under the Exemptions cited above. The Office must identify the records, categories of records, or portions of records it intends to withhold, and explain with specificity how the exemptions apply to withhold such 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”). It is further uncertain why the records must be withheld in their entirety. The Office must explain whether the records can be redacted so that segregable portions can be provided. 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). Conclusion Accordingly, the Office is ordered to provide Ms. Barndollar 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

Megan J. McLatchey, Esq. SPR25/3144 Page 11 November 7, 2025 office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. Ms. Barndollar 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: Hadley Barndollar