Joshua Dankoff v. Hampden County Sheriff's Department (SPR 20253239)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 19, 2025 SPR25/3239 Theresa S. Finnegan, Esq. General Counsel/Assistant Superintendent Hampden County Sheriff’s Office 627 Randall Road Ludlow, MA 01056 Dear Attorney Finnegan: I have received the petition of Joshua Dankoff, of Citizens for Juvenile Justice, appealing the response of the Hampden County Sheriff’s Office (Office/HCSO) 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 limited to, emails, phone call records (including logs showing incoming/outgoing calls and, if available, 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

Theresa S. Finnegan, Esq. SPR25/3239 Page 2 November 19, 2025 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. For each request, I am not seeking identifying information, and I will accept anonymized or redacted data as necessary to protect identities. I also request that, if appropriate, fees be waived as we believe this request is in the public interest. I expect the request to be filled in an accessible format, including for screen readers, which provide text-to-speech for persons unable to read print. Files that are not accessible to screen readers include, for example, .pdf image files as well as physical documents. The Office responded on September 11, 2025. Unsatisfied with the Office’s response, Mr. Dankoff petitioned this office, and this appeal, SPR25/3239, 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. Current Appeal In his appeal petition, Mr. Dankoff contends: ECSD’s reliance on Exemption (a) is improper. First, 8 C.F.R. § 236.6 is a regulation, not a statute, and therefore cannot support withholding under Exemption (a). Second, ECSD does not have the type of contractual or custodial relationship with ICE required for coverage. Third, even if the regulation did apply, it only justifies redacting ICE detainee-specific information, not

Theresa S. Finnegan, Esq. SPR25/3239 Page 3 November 19, 2025 withholding detainee information from people in ECSD custody, and certainly not all communications. Fourth, this case is categorically different from SPR 25/1221, as my request explicitly allowed anonymization and did not seek detainee identities. Finally, CORI exemptions are irrelevant here, since my request did not seek criminal histories or offender record information. For these reasons and given that multiple sheriff’s departments are citing the same improper rationale (Franklin, Hampden, Barnstable, Middlesex, and Essex – all responses attached), I respectfully request that the Supervisor of Records order ECSD and other sheriffs mentioned to release all responsive, non-exempt records, with only limited redactions of detainee-identifying information if necessary. The Office’s September 11th Response In its September 11, 2025 response, the Office provided a record responsive to Item 1 of Mr. Dankoff’s request. In response to Items 2 and 3, the Office stated “…the records you are requesting are exempt from disclosure under public records law pursuant to Exemption (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 access to the listed individuals or entities.

Theresa S. Finnegan, Esq. SPR25/3239 Page 4 November 19, 2025 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 September 11th response, the Office states: There are three communications with ICE for the time frame you have requested. Federal law, specifically, 8 C.F.R. section 236.6. The CMR states.... The Hampden County Sheriff’s Office (HCSO) does not have a contract with ICE, but does maintain a relationship with ICE per its policy, providing notification of releases of individuals who have Ice Detainers, which is providing a service under the CMR. HCSO cooperates with ICE to the extent allowed by federal and state laws. Therefore it has an official relationship with ICE as a local government entity that operates a detention facility that provides services on behalf of ICE. Therefore, the HCSO is forbidden from disclosing the requested information. In a recent appeal on a similar public records request, the Supervisor agreed with another Sheriff’s Department’s use of the statutory exemption based on the same Federal CMR cited above. See SPR25/1221, May 16, 2025. The documents requested contain the names of or other information related to detainees, and these records are exempt from disclosure. Burden of Specificity in Claiming Exemptions; Additional Records Under the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. 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

Theresa S. Finnegan, Esq. SPR25/3239 Page 5 November 19, 2025 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 Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. Based on the information provided in the Office’s September 11th 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. However, the Office’s September 11th response did not contain the specificity required in a denial of access to public records. It is unclear from the Office’s response which specific records the Office 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 Office has not demonstrated that the responsive records are the type of records contemplated under 8 C.F.R. § 236.6. Therefore, the Office 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. Moreover, based on the Office’s response that “[a]s to #s 2 & 3 … [t]here are three communications with ICE for the time frame you have requested[,]” it is unclear if the Office possesses additional records responsive to the request. Specifically, the Office must clarify whether it possesses other records responsive to Items 2 and 3 of Mr. Dankoff’s request. 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). 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). Consequently, the Office must clarify whether additional records exist. 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 appeal the substantive nature of the Office’s response within ninety days. See 950 C.M.R. 32.08(1).

Theresa S. Finnegan, Esq. SPR25/3239 Page 6 November 19, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Joshua Dankoff