Joshua Dankoff v. Essex County Sheriff's Department (SPR 20253231)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 19, 2025 SPR25/3231 Jordan Elizabeth Mitchell Assistant General Counsel Essex County Sheriff’s Department 20 Manning Avenue Middleton, MA 01949 Dear Attorney Mitchell: I have received the petition of Joshua Dankoff, of Citizens for Juvenile Justice, appealing the response of the Essex County Sheriff’s Department (Department/ECSD) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 12, 2025, Mr. Dankoff requested the following: [1] All records related to the Sheriff Office’s policies regarding communication and information sharing between office 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 communications between office employees and DHS or ICE surrounding any incident, if any, from January 20, 2025, to the day this request is responded to, in which an individual involved in HOC custody was taken into ICE custody. For each incident, the records request includes, but is not 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

Jordan Elizabeth Mitchell SPR25/3231 Page 2 November 19, 2025 limited to, emails, phone call records (including logs showing incoming/outgoing calls and, if available, call summaries or transcripts), text messages (including those sent or received on personal or departmental devices), and any internal notes, memos, or documentation referencing communication with DHS or ICE. The Department responded on September 9, 2025. Unsatisfied with the Department’s response, Mr. Dankoff petitioned this office, and this appeal, SPR25/3231, 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 Department’s September 9th Response In its September 9, 2025 response, regarding Item 1 of the request, the Department stated, “[the Department] does not maintain any policies regarding communications with either DHS or ICE.” Regarding Items 2 and 3 of the request, the Department stated, “[the Department] maintains that such records are exempt from disclosure pursuant to G.L. c. 4, § 7(26)(a) because they are specifically or by necessary implication exempt from disclosure by 8 C.F.R. § 236.6.” Current Appeal In his appeal, Mr. Dankoff states, “I respectfully appeal the Essex County Sheriff’s Department’s (ECSD) denial of my public records request. ECSD improperly withheld records under M.G.L. c. 4, § 7(26)(a), citing 8 C.F.R. § 236.6.”

Jordan Elizabeth Mitchell SPR25/3231 Page 3 November 19, 2025 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. In its response, the Department cites 8 C.F.R. § 236.6 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.

Jordan Elizabeth Mitchell SPR25/3231 Page 4 November 19, 2025 8 C.F.R. 236.6 In its September 9th response, the Department states the following: Under 8 C.F.R. 236.6, the ECSD 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 ECSD does not have a contract with ICE, the ECSD still maintains an official relationship with ICE to the extent allowed by the laws of the United States and the Commonwealth of Massachusetts. At ICE’s request, the ECSD provides information regarding specific individuals in custody. ICE, in turn, sends the ECSD 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 ECSD custody. The ECSD 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 ECSD 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 ECSD then cooperates within the limits of Lunn when ICE seeks to have a detainee transferred directly from ECSD custody to ICE custody at the end of their Commonwealth-ordered detention The ECSD, 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 ECSD 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.” While the ECSD is sympathetic to the request that the documents be provided 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. Burden of specificity; identify records withheld Based on the information provided in the Department’s September 9th response, the Department 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. However, the Department’s September 9th response did not contain the specificity required in a denial of

Jordan Elizabeth Mitchell SPR25/3231 Page 5 November 19, 2025 access to public records. It is unclear from the Department’s response which specific records the Department intends to withhold and how those records contain the names of or other information related to detainees. 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”); see also 950 C.M.R. 32.06(3)(c)(4). Consequently, the Department has not demonstrated that the responsive records are the type of records contemplated under 8 C.F.R. § 236.6. Therefore, the Department has not 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, § 27(26)(a). The Office must clarify these matters. Conclusion Accordingly, the Department 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 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 Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Joshua Dankoff