Daniel McDonald v. Suffolk County Sheriff's Department (SPR 20253557)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 16, 2025 SPR25/3557 Brigid Finnegan Executive Assistant to the General Counsel Office of the General Counsel Suffolk County Sheriff’s Department 200 Nashua Street Boston, MA 02114 Dear Ms. Finnegan: I have received the petition of Danny McDonald, of the Boston Globe, appealing the response of the Suffolk County Sheriff’s Department (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 22, 2025, Mr. McDonald requested, “[a]ny and all SID files for the following current and former Suffolk sheriff’s [four (4) identified] department employees.” Previous Appeal This request was the subject of a previous appeal. See SPR25/2954 Determination of the Supervisor of Records (October 21, 2025). In my October 21st determination, I found that the Department had not met its burden in responding to the request in accordance with G. L. c. 66, § 10(b)(vi). The Department provided responses on November 4, 2025 and November 5, 2025. Unsatisfied with the Department’s responses, Mr. McDonald petitioned this office and this appeal, SPR25/3557, 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). 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

Brigid Finnegan SPR25/3557 Page 2 December 16, 2025 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, Mr. McDonald asserts, “[the Department] still ha[s] not provided internal SID files for [identified individuals]. These are public records not covered by the exemptions they claim. Additionally, their SID records for [an identified individual] are incomplete as they do not include an internal investigation into alleged assault by ... on fellow [identified] corrections officer on Aug. 3, 2022. A complaint was made to Boston police and an internal Suffolk sheriff’s investigation was opened into that incident, yet there is no record of it in their response.” Additional Records Based on Mr. McDonald’s claim regarding incomplete SID records for the named individual, it is unclear if the Department possesses additional records responsive to his 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). However, 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 Department must clarify whether any additional responsive records exist. The Department’s November 4th and November 5th Responses In its November 4, 2025 response, the Department stated, “[t]he Department has gathered the records to respond to your request. We are in the process of reviewing the records and will send out a final and substantive response, along with the records, on the next business day (11/05/25).” In its November 5, 2025 response, the Department produced “twenty-one (21) pages of responsive records. Please note that this response is limited to records created within the past five (5) years.” The Department withheld certain records pursuant to Exemption (a) of the Public Records Law and withheld and redacted additional records pursuant to Exemption (c) of the Public Records Law.

Brigid Finnegan SPR25/3557 Page 3 December 16, 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 cited the Criminal Offender Record Information (CORI) statute. The current definition of CORI is as follows: Criminal offender record information,” records and data in any communicable form compiled by a Massachusetts criminal justice agency which concern an identifiable individual and relate to the nature or disposition of a criminal charge, an arrest, a pre-trial proceeding, other judicial proceedings, previous hearings conducted pursuant to section 58A of chapter 276 where the defendant was detained prior to trial or released with conditions under subsection (2) of section 58A of chapter 276, sentencing, incarceration, rehabilitation, or release. Such information shall be restricted to information recorded in criminal proceedings that are not dismissed before arraignment. Criminal offender record information shall not include evaluative information, statistical and analytical reports and files in which individuals are not directly or indirectly identifiable, or intelligence information. Criminal offender record information shall be limited to information concerning persons who have attained the age of 18 and shall not include any information concerning criminal offenses or acts of delinquency committed by any person before he attained the age of 18; provided, however, that if a person under the age of 18 was adjudicated as an adult in superior court or adjudicated as

Brigid Finnegan SPR25/3557 Page 4 December 16, 2025 an adult after transfer of a case from a juvenile session to another trial court department, information relating to such criminal offense shall be criminal offender record information. . . . G. L. c. 6, § 167. In its response, the Department stated, “[t]he Massachusetts Criminal Offender Records Information Act, (CORI) M.G.L. c. 6, §1 67, et[.] seq[.] bars disclosure of certain data compiled of an identifiable individual that relates to their incarceration. Accordingly, CORI information is redacted.” Although the data may be related to an incarcerated individual, the Department must provide further information in support of the withholding of the requested records pursuant to the CORI statute. Specifically, it is not clear how the withheld records constitute “information recorded in criminal proceedings that are not dismissed before arraignment.” See G. L. c. 6, § 167. The Department must clarify this. Exemption (c) Exemption (c) applies to: 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 G. L. c. 4, § 7(26)(c). First Clause - Personnel While statutorily exempting personnel information from the expansive definition of public records, the Legislature did not explicitly define “personnel [file] or information.” G. L. c. 4, § 7(26)(c). Judicial decisions advise that the term is neither rigid, nor exact, and that the determination is case-specific. Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 58 Mass. App. Ct. 1, 5 (2003). The custodian’s classification of materials as “personnel information” is not conclusive. Wakefield Teacher’s Ass’n v. Sch. Comm. of Wakefield, 431 Mass. 792, 798 (2000). Instead, the nature or character of the documents, as opposed to the documents’ label, is crucial to the analysis. See Worcester Telegram & Gazette Corp., 436 Mass. at 386. The Massachusetts Supreme Judicial Court (Court) has refined the analysis to be employed when considering the public record status of personnel records. The Court has held that personnel information that is “useful in making employment decisions regarding an employee” may be withheld pursuant to the first clause of exemption (c). Wakefield Teacher’s Ass’n, 431 Mass. at 798, quoting Oregonian Publ. Co. v. Portland Sch. Dist. No. 1J, 329 Or. 401

Brigid Finnegan SPR25/3557 Page 5 December 16, 2025 (1999). The Court further defined those records that may be withheld as personnel information to include, “employment applications, employee work evaluations, disciplinary documentation, and promotion, demotion, or termination information pertaining to a particular employee.” Wakefield Teacher’s Ass’n, 431 Mass. at 798. In its response, the Department states, “... the Department withholds responsive records that constitute personnel information.” Based on the Department’s response, it is unclear what types of records it possesses that are responsive to the request nor how the records constitute one of the core categories of personnel information that is useful in making employment decisions regarding an employee. 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 Globe Newspaper Co., 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The Department must clarify this matter. 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. 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, the Department states, “...the Department asserts M.G.L.A. 4 § 7 (26) (c), the ‘privacy exemption’, which exempts from public record disclosure personnel files, medical

Brigid Finnegan SPR25/3557 Page 6 December 16, 2025 files, and other records relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy.” Based on the Department’s response, it is unclear how the redacted information constitutes intimate details of a highly personal nature, nor how disclosure would result in personal embarrassment to an individual of normal sensibilities. Also, it is not clear if the redacted information is available from other sources. Further, the Department did not provide information with respect to examining whether the public interest in obtaining the requested information outweighs the seriousness of any invasion of privacy. It is additionally uncertain the type of information the Department has redacted from the records. The Department must clarify this matter. Conclusion Accordingly, the Department is ordered to provide Mr. McDonald with a response, 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. McDonald may appeal the substantive nature of the Department’s response within 90 calendar days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Danny McDonald