Matthew Stout v. Department of State Police (SPR 20260056)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 7, 2026 SPR26/0056 Allison Mondello Public Records Manager Massachusetts Department of State Police 470 Worcester Road Framingham, MA 01702 Dear Ms. Mondello: I have received the petition of Matt Stout, of the Boston Globe, appealing the response of the Department of State Police (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On December 2, 2025, Mr. Stout requested the following: [1] Copies of any records or documents related to a background check or other vetting the MSP performed of [a named individual] prior to his 2023 hiring within the Healey administration; [2] Copies of any records or documents MSP provided to the Massachusetts governor’s office related to the background check performed of [the named individual] prior to his 2023 hiring. The Department responded on December 19, 2025. Unsatisfied with the response, Mr. Stout petitioned this office and this appeal, SPR26/0056, 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 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

Allison Mondello SPR26/0056 Page 2 January 7, 2026 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 December 19th Response In its December 19, 2025 response, the Department cited Exemptions (a), (c), and (f) of the Public Records Law to withhold one requested record in its entirety. See G. L. c. 4, § 7(26)(a), (c), (f). The Department identifies the responsive record as follows: The Department has in its possession [the named individual]’s Background Check, inclusive of: (i) the candidate’s completed background check paperwork; (ii) information compiled by the Department’s State Office of Investigations (SOI) concerning the candidate’s personal, professional, driving, tax histories, as well as the results of a standard search of all applicable Department of Criminal Justice Information Services (DCJIS) information; and (iii) a memorandum and summary of this information authored by an assigned member of the SOI with the status of trooper. Current Appeal In his appeal, Mr. Stout contends that he is “appealing on the basis that the public interest in the information requested, given the subject’s position within the governor’s office and his subsequent arrest on charges stemming, in part, from police activity at his government office, outweighs the privacy interest cited by State Police.” 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).

Allison Mondello SPR26/0056 Page 3 January 7, 2026 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. Criminal Offender Record Information (CORI) 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 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. Criminal offender record information shall not include information concerning any offenses which are not punishable by incarceration. G. L. c. 6, § 167. In its December 19th response, under Exemption (a) and CORI, the Department argues the following: Section 167 of chapter 6 defines criminal offender record information (CORI) as records and data in any communicable form compiled by a Massachusetts criminal justice agency which concern an identifiable individual and relate to the

Allison Mondello SPR26/0056 Page 4 January 7, 2026 nature or disposition of a criminal charge, an arrest, a pretrial proceeding, other judicial proceedings . . . .” The Department, in its response, referenced exemption (a) because background checks do involve searching law enforcement databases, and therefore CORI information may or may not exist in the file. It is not the Department’s position that the record is exempt in its entirety under CORI. Rather, as in any case, any applicable information drawn from DCJIS or other law enforcement records would fall within the scope of cl. 26(a). The record is exempt in its entirety under cl. 26(c) and cl. 26(f). Exemption (c) Exemption (c) permits the withholding of: 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 (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 December 19th response, under Exemption (c), the Department argues the following:

Allison Mondello SPR26/0056 Page 5 January 7, 2026 SOI’s mandate is to conduct confidential background checks for the Office of the Governor and other state agencies for prospective employees and appointees. SOI’s work is conducted privately and out of public view. Because background checks probe highly sensitive personal and professional information, conducting them privately encourages candid disclosures from applicants and references, and preserves the integrity and confidentiality of the hiring process. The purpose of the background check is to ensure that the hiring or appointing agency is fully informed in making its employment decision, and aware of information that may bear on suitability, trustworthiness, readiness, and competence of a potential employee or applicant. Candidates receiving SOI conducted background checks are notified, upon completing their background check paperwork, that a completed background check is “required in connection with your candidacy for a position with the Commonwealth” and all “[o]btained information is protected from public disclosure by Massachusetts General Laws, Chapter 4, Section 7, Clause 26, Subclause (c).” . . . The Department is unaware of any instance in which a background check for any current or former employee – or any portion thereof – has ever before been disclosed as a public record by SOI. . . . As described above, the record at issue here was compiled, created, and used for the sole and exclusive purpose of assisting the Commonwealth in making an employment decision regarding a prospective employee. That is, this is clearly the type of information that is “useful in making employment decisions,” Wakefield, 431 Mass. at 798, and was gathered for that very purpose. See also Coleman M. Herman v. City of Boston, et al., No. 2384CV2395 (Mass. Super. Ct. June 20, 2024) (“personnel files…shall be considered exempt under exemption (c)…”); SPR25/0520 (citing Globe Newspaper Co., Inc. v. Edward Flynn, No. 04-0571 (Mass. Sup. Ct. 2004) (providing that exempt personnel information “…is collected in order to make employment decisions regarding a particular employee.”)). The record, and its sub-components, are all categorically a “personnel record” within the meaning of G. L. c. 149, § 52C and was, in fact, as all background checks are, used to make an employment decision regarding an employee. As such, the record is protected from disclosure. Further, because background checks are exclusively used as part of a confidential screening process to evaluate a particular applicant’s fitness for employment, and because they contain highly personal information, they fall squarely within exemption (c) and are not subject to disclosure. See Wakefield, 431 Mass. at 798; Globe Newspaper Co., Inc. v. Exec. Office of Admin. & Fin., No. 2011-01184 A (Mass. Sup. Ct. June 14, 2013). This is consistent with the longtime notification provided to – and expectations of – all prospective employees and applicants who receive a background check. . . .

Allison Mondello SPR26/0056 Page 6 January 7, 2026 Exemption (f) Exemption (f) permits the withholding of: investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest. G. L. c. 4, § 7 (26)(f). A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 371 Mass 59, 62 (1976). Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Att’y Gen., 52 Mass. App. Ct. 244, 248 (2001); Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 290 n.18 (1979). Exemption (f) invites a “case-by case consideration” of whether disclosure “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” See Reinstein, 378 Mass. at 289-290. The Supreme Judicial Court has stated that Exemption (f) aims at “the avoidance of premature disclosure of the Commonwealth’s case prior to trial, the prevention of the disclosure of confidential investigative techniques, procedures, or sources of information, the encouragement of individual citizens to come forward and speak freely with police concerning matters under investigation, and the creation of initiative that police officers might be completely candid in recording their observations, hypotheses and interim conclusions.” Bougas, 371 Mass. at 62; cited with approval in Reinstein, 378 Mass. at 289. To properly claim that Exemption (f) applies, a custodian must demonstrate that the disclosure of the records would have a prejudicial effect on its investigative efforts. This can be accomplished by describing how the records fall into one of three categories. These are the three categories that justify withholding records under Exemption (f):  The records reflect an ongoing investigation, such that any information relating to an ongoing investigation that could potentially alert suspects or targets to the activities of investigative officials;  The records reflect internal techniques, procedures, or sources, such that their disclosure would prejudice not only ongoing, but future law enforcement efforts; or  Disclosure of records would cause a chilling effect, because the exemption allows investigative officials to provide an assurance of confidentiality to individuals so that they

Allison Mondello SPR26/0056 Page 7 January 7, 2026 will speak openly about matters under investigation. Such records in this third category include: any details in statements that directly or indirectly identify a private citizen who volunteers as a witness; an entire statement if the identity of witnesses is known to the requestor; and information voluntarily provided by an individual or entity to aid in the investigation. In its response, under Exemption (f) the Department argues the following: For the same reasons [quoted above], the requested record is also fully exempt from disclosure under G.L. c. 4, § 7, cl. 26 (f). The record was indeed “compiled out of the public view by law enforcement” (i.e., the SOI) and its disclosure would “prejudice the possibility of effective law enforcement” by revealing the methods and approach used by the SOI in conducting its work. See Mittleman v. Off. of Pers. Mgmt., 76 F.3d 1240, 1243 (D.C. Cir. 1996) (background investigations are also exempt under FOIA’s investigatory exemption); see also Friedman v. Div. of Admin. Law Appeals, 103 Mass. App. Ct. 806, 815 (2023) (due to similarities between FOIA and state public records law, Massachusetts courts “look[] to the Federal law for guidance”). Active Litigation 950 C.M.R. 32.08(2)(b) provides in pertinent part: the Supervisor may deny an appeal for, among other reasons if, in the opinion of the Supervisor: 1. the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation. In light of the pending matter, In the Matter of LeMar D. Cook, Springfield District Court, 2579BP00256, I decline to opine on this matter at this time. See 950 C.M.R. 32.08(2)(b). I further decline to opine on the applicability of Exemptions (a), (c), and (f) of the Public Records Law to the requested record. It should be noted that a change in the status of this action could impact the applicability of 950 C.M.R. 32.08(2)(b). Sincerely. Manza Arthur Supervisor of Records cc: Matt Stout