Joshua Dankoff v. Middlesex County Sheriff's Office (SPR 20253489)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 10, 2025 SPR25/3489 Megan J. McLatchey, Esq. Associate Legal Counsel Middlesex County Sheriff’s Office 12 Gill Street, Suite 4700 Woburn, MA 01801 Dear Attorney McLatchey: I have received the petition of Joshua Dankoff, of Citizens for Juvenile Justice, appealing the response of the Middlesex County 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 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 acknowledgment 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

Megan J. McLatchey, Esq. SPR25/3489 Page 2 December 10, 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. Previous Appeal This request was the subject of a previous appeal. See SPR25/3296 Determination of the Supervisor of Records (November 24, 2025). In my November 24th determination, I closed SPR25/3296 in light of the Office providing a supplemental response on November 24, 2025. Unsatisfied with the Office’s response, Mr. Dankoff petitioned this office, and this appeal, SPR25/3489, 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 16th and November 24th Responses In its September 16, 2025 response, the Office provided records responsive to Item 1 of the request in redacted form, and cited Exemption (n) of the Public Records Law for redacting the records. See G. L. c. 4, § 7(26)(n). In its September 16, and November 24, 2025 responses, the Office states that it is withholding records responsive to Items 2 and 3 pursuant to 8 C.F.R. 236.6, as it operates through Exemption (a) of the Public Records Law. See G. L. c. 4, § 7(26)(a). In his appeal petition, Mr. Dankoff states “regarding Middlesex, I am not challenging the redactions under exemption n.”

Megan J. McLatchey, Esq. SPR25/3489 Page 3 December 10, 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. 8 C.F.R. 236.6 In its May 1st response, the Office argues that “the names and information relating to immigration detainees information is exempt from disclosure under G.L. c. 7, § 26(a), which exempts records that are ‘specifically or by necessary implication exempted from disclosure by statute.’ The statute covered by this exemption is 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

Megan J. McLatchey, Esq. SPR25/3489 Page 4 December 10, 2025 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 16th response, the Office argues the following: Under 8 CFR 236.6, the MSO constitutes a state government entity that houses, maintains, provides services to, or otherwise holds detainees on behalf of the U.S. Immigration and Customs Enforcement (“ICE”). While the MSO does not have a contract with ICE, the MSO still maintains a professional, law enforcement relationship with DSH and ICE to the extent allowed by the laws of the United States and the Commonwealth of Massachusetts. At ICE’s request, the MSO routinely provides ICE with lists of individuals in MSO custody and those scheduled to be released from MSO custody. ICE, in turn, sends the MSO I-247A “immigration detainers” when ICE becomes aware, either from the MSO’s lists or otherwise, that an individual subject to a detainer is in MSO custody. The MSO 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 MSO does, however, log ICE detainers in order to notify ICE in a timely manner when individuals subject to a detainer are due to be released. Further, the MSO then cooperates within the limits of Lunn when ICE seeks to have an individual subject to a detainer transferred from MSO custody to ICE custody at the end of their Commonwealth-ordered detention by notifying ICE when the individual will be released from MSO custody or has a scheduled court appearance that may result in their release. The MSO, 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 MSO 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.” (emphasis added). 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 and therefore is not subject to the Public Records Law in its entirety. 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 and therefore the requested records are withheld by the MSO in their entirety.

Megan J. McLatchey, Esq. SPR25/3489 Page 5 December 10, 2025 In its November 24th response, the office argues the following: [T]he MSO is 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, under 8 C.F.R. 236.6. The MSO maintains a law enforcement relationship with ICE and DHS to the extent that the MSO provides information to said ICE and DHS officials pertaining to inmates and detainees in MSO custody who have ICE detainers or ICE warrants, court dates for said individuals, and release dates for said individuals. The MSO further clarifies that the MSO has identified email records in response to Request 2 and Request 3; however, the MSO withholds the entirety of these email records pursuant to M.G.L. c. 4, §7(26)(a). Specifically, these records are expressly exempted from public disclosure pursuant to 8 C.F.R. §236.6, a regulation promulgated by 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. The MSO further clarifies in response to Request 2 and Request 3, that these identified email records list the names of detainees and other specific information relating to said detainees within the MSO’s custody, including but not limited to the date of arrest, the date of entry into MSO’s custody, the detainee’s court appearance date, and release information. These records are of the kind contemplated under 8 C.F.R. §236.6, as these records, and the information contained therein, are obtained through the MSO’s relationship with persons or entities who house, maintain, provide services to or otherwise house detainees on behalf of DHS. Accordingly, the MSO is an entity governed by 8 C.F.R. §236.6, which expressly limits the disclosure of these records to the authority of the Service and subjects any “public disclosure” to the requirements of “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 8 C.F.R. §236.6 these records themselves are not public records. The specific information governed by 8 C.F.R. §236.6 cannot be redacted from the responsive records in a manner consistent with public records laws and the requirements of 8 C.F.R. §236.6, as 8 C.F.R. §236.6 maintains that the whole of any document or record that contains such detainee information shall not be public record. Based on the information provided in the Office’s September 16th and November 24th responses, 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 record contemplated under 8 C.F.R. § 236.6. Accordingly, where the Office has demonstrated that it is prohibited from releasing the responsive records under federal

Megan J. McLatchey, Esq. SPR25/3489 Page 6 December 10, 2025 regulation, I find that the Office has met its burden to withhold the 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). Conclusion Accordingly, I will 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. See G. L. c. 66, §§ 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Joshua Dankoff