Joshua Dankoff v. Berkshire County Sheriff's Department (SPR 20253280)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 21, 2025 SPR25/3280 Daniel Sheridan, Esq. Assistant Superintendent Berkshire County Sherriff’s Office 467 Cheshire Road Pittsfield, MA 01201 Dear Attorney Sheridan: I have received the petition of Joshua Dankoff, of Citizens for Juvenile Justice, appealing the response of the Berkshire County Sherriff’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 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 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

Daniel Sheridan, Esq. SPR25/3280 Page 2 November 21, 2025 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 Office responded on September 2, 2025. Unsatisfied with the Office’s response, Mr. Dankoff petitioned this office and this appeal, SPR25/3280, 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 2nd Response In its September 2, 2025 response, the Office provided records responsive to Item 1 of the request, and cited 8 C.F.R 236.6 as it operates through Exemption (a), as well as Exemption (c) of the Public Records Law, to withhold records responsive to Items 2 and 3. Current Appeal In his appeal petition, Mr. Dankoff objected to the Office withholding records under Exemption (a). Mr. Dankoff does not appear to object to the Office withholding records under Exemption (c). Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are:

Daniel Sheridan, Esq. SPR25/3280 Page 3 November 21, 2025 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, 54 (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. 8 C.F.R. 236.6 In its September 2, 2025 response, the Office cited 8. C.F.R. § 236.6, a federal regulation promulgated by the Department of Homeland Security (DHS), which provides in pertinent part 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.

Daniel Sheridan, Esq. SPR25/3280 Page 4 November 21, 2025 Items 2 and 3 Under Exemption (a), the Office stated: The documents you have requested under [Items 2 and 3] fall within the provision of 8 CFR § 236.6 and therefore are expressly exempted from disclosure. The documents themselves are not public records pursuant to 8 CFR § 236.6, a regulation promulgated by the Department of Homeland Security (DHS) pursuant to federal law, 5 USC 301, 552, 552a; 6 USC 112(a)(2), 112(a)(3), 112(b)(1), 112(e), 202, 251, 279, 291; 8 USC 1103, 1182, 1224, 1226, 1227, 1231, 1232, 1324a, 1357, 1362, 1611; 18 USC 4002, 4013(c)(4); and 8 CFR part 2. Under the regulations cited above (8 CFR 236.6), the Berkshire County Sheriff’s Office (BCSO) 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. The BCSO maintains an official relationship with ICE and DHS to the extent that BCSO provides information to said ICE/DHS officials pertaining to inmates in BCSO custody who have ICE detainers or ICE warrants, court dates for said individuals, and release dates for said individuals. As such, the BCSO is an entity subject to DHS regulation 8 CFR 236.6 that expressly restricts disclosure of said information to the control of the Service and makes “public disclosure” subject to “the provisions of the applicable federal laws, regulations and executive orders.” “Insofar as any documents or other records contain such information, such documents shall not be public records.” By virtue of the regulation the documents themselves are not public records. Redacting names or other identifiable information (release dates, court dates, court locations, etc.) from said documents would not, thereby, convert them into public records. Based on the information provided in the Office’sresponse, 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. Additionally, the Office has explained that the responsive records contain the name of or other information relating to detainees. Consequently, the Office has demonstrated that the responsive records are the type of records contemplated under 8 C.F.R. § 236.6. Accordingly, where the Office has demonstrated that it is prohibited from releasing these documents under federal regulation, I find that the Office has 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, § 7(26)(a).

Daniel Sheridan, Esq. SPR25/3280 Page 5 November 21, 2025 Conclusion Accordingly, I will now consider this administrative appeal closed. If Mr. Dankoff is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth of Massachusetts. See G. L. c. 66, § 10A(c) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Joshua Dankoff