White, Virginia v. Barnstable County Sheriff's Office (SPR 20260207)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 3, 2026 SPR26/0207 Michael B. Halpin, Esq. General Counsel Barnstable County Sheriff’s Office 6000 Sheriff’s Place Bourne, MA 02532 Dear Attorney Halpin: I have received the petition of Virginia White appealing the nonresponse of the Barnstable 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 November 24, 2025, Ms. White requested “[the] record on the ‘identity theft’ that occurred to [an identified individual] at your facility in April of 2025.” Specifically Ms. White sought: [1] Name or names of accused[;] [2] Charges made[;] [3] Ramifications of crime[;] [4] Outcome[.] Previous Appeal This request was the subject of a previous appeal. See SPR25/3679 Determination of the Supervisor of Records (December 30, 2025). In my December 30th determination, I closed SPR25/3679 in light of the Office providing Ms. White with a written response on December 30, 2025. Unsatisfied with the Office’s response, Ms. White petitioned this office, and this appeal, SPR26/0207, was opened as a result. Status of the Requestor Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Ms. White’s status will play no role in a determination as to whether the 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

Michael B. Halpin, Esq. SPR26/0207 Page 2 February 3, 2026 records should be disclosed or redacted under the Public Records Law. 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 December 15th Response In its December 15, 2025 response, the Office cites Exemptions (b), (c), (o), and (p) of the Public Records Law for withholding a responsive investigative report. See G. L. c. 4, § 7(26)(b), (c), (o), (p). Exemption (b) Exemption (b) permits the withholding of records that are: Related solely to internal personnel rules and practices of the government unit, provided however, that such records shall be withheld only to the extent that proper performance of necessary governmental functions requires such withholding G. L. c. 4, § 7(26)(b). There are no authoritative Massachusetts decisions interpreting Exemption (b). The general purpose of the cognate federal exemption is to relieve agencies of the burden of assembling and maintaining for public inspection materials in which the public cannot reasonably be expected to have an interest. See Dep’t of the Air Force v. Rose, 425 U.S. 352, 362-70 (1976) (interpreting the federal Freedom of Information Act, which provides an exemption for records which are “related solely to the internal personnel rules and practices of an

Michael B. Halpin, Esq. SPR26/0207 Page 3 February 3, 2026 agency”); see also Globe Newspaper Co. v. Boston Ret. Bd., 388 Mass. 427, 432 (1983) (Massachusetts Public Records Law modeled on federal Freedom of Information Act). The courts have interpreted the federal exemption to allow withholding of materials that, if released, could cause agency rules or regulations to be circumvented. See Fiumara v. Higgins, 572 F. Supp. 1093, 1102 (1983) (internal codes are exempt where disclosure may enable outsiders to circumvent agency functions). The analysis employed by the federal courts requires a two-pronged test. Material is exempt if it is predominantly used internally and if disclosed would significantly risk circumvention of agency regulations and statutes. See Marrera v. United States Dep’t of Justice, 622 F. Supp. 51, 55 (D.D.C. 1985) (Bureau of Prisons access and identity codes were properly withheld as materials in which the public would have no legitimate interest or which would compromise security if disclosed). In its response, under Exemption (b), the Office argues the following: BCSO policies concerning personnel investigations require the maintenance of confidentiality and, “[a]s far as practicable … [the] confidentiality of the complaint and of personal information.” Policy & Procedure 201.01 206.01. Such confidentiality provisions are intended to “ha[ve], among other benefits, the protection of the government’s ability to function effectively as an employer” by precluding the “disclosure of sensitive and careful investigation and analysis [that] would make the same kind of investigation and analysis difficult, if not impossible, in the future.” Wakefield Teachers Ass’n. v. School Comm., 431 Mass. 792, 802 (2000) (“Wakefield”). Accordingly, the material you seek is, because it “relate[s] solely to internal personnel rules and practices of [a] government unit” and the “proper performance of … necessary government functions[,]” also exempt from disclosure pursuant to G. L. c. 4, §7, Twenty- Sixth, (b). In this case, the Office has not demonstrated that the records are solely related to internal personnel rules and practices of the government unit. Additionally, the Office has not explained whether such records are predominantly used internally, and it is unclear how such records would significantly risk circumvention of agency regulations and statutes. Therefore, the Office has not met its burden to withhold the responsive records under Exemption (b). 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).

Michael B. Halpin, Esq. SPR26/0207 Page 4 February 3, 2026 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. 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. This clause does not protect all data relating to specifically named individuals. Rather, 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

Michael B. Halpin, Esq. SPR26/0207 Page 5 February 3, 2026 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, under Exemption (c), the Office argues the following: [T]he BCSO does possess potentially responsive investigative material – specifically, investigative material concerning a data security breach (not a determined case of “identity theft”) that is exempt from public disclosure pursuant to G. L. c. 4, § 7, Twenty-sixth (c). Exemption (c) of G.L. c. 4, §7, Twenty-Sixth “includes two categories of records . … [t]he first category, personnel and medical files or information … is absolutely exempt from mandatory disclosure[.]” Boston Globe v. Department of Public Health, 482 Mass. 427, 438 (2019) (quotation marks and citations omitted). While the statute does not define the term “personnel information,” courts have interpreted the exemption to include any information which is useful in making employment decisions such as employment applications, employee work evaluations, performance assessments, disciplinary documentation, and promotion, demotion, or termination information. See Wakefield Teachers Ass’n. v. School Comm., 431 Mass. 792, 798 (2000) (“Wakefield”); see also Brogan v. School Committee of Westport, 401 Mass. 306, 308 (1987); Pottle v. School Committee of Braintree, 395 Mass. 861, 866 (1985); Prescott Publishing Company v. Registry of Probate for Norfolk County, 395 Mass. 274, 278 (1985); Globe Newspaper Company v. Boston Retirement Board, 388 Mass. 427, 436, n. 15 (1983); Hastings & Sons Publishing Company v. City Treasurer of Lynn, 374 Mass. 812, 818 (1978); Worcester T&G v. Chief of Police of Worcester, 58 Mass. App. Ct. 1 (2003). Like the report at issue in Wakefield, the confidential investigative report concerning the data breach here is a “single, integrated report … [constituting] personnel … information” and is, in its entirety, exempt. Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 58 Mass. App. Ct. 1, 9 (2003) (“Worcester T&G”). When, as is the case here, discipline follows an investigative inquiry, there is there “no doubt that such a report is personnel information as that term is used in the first category of the exemption. G. L. c. 4, § 7, Twenty-sixth (c).” Wakefield at 797 (quotation marks and citations omitted). In short, such a report is undeniably the type of information that an employer may find “useful in making employment decisions regarding an employee[,]” and, as such, it falls into the “core categories of personnel information” that are entirely protected from public disclosure by Massachusetts law. Wakefield at 797 (citation omitted). The Office is advised that the Supreme Judicial Court has held that Exemption (c) “clearly and unambiguously states that the privacy exemption does not apply to an ‘investigation’ of law enforcement misconduct.” Eric Mack v. Dist. Att’y for the Bristol Dist., 494 Mass. 1, 12 (2024). Additionally, the Court held that the phrase “related to,” as used in Exemption (c), “is construed broadly.” Id. at 12 n.9. Specifically, the Court held that the exemption did not apply to records related to an investigation into whether two police officers had committed any crimes or violated their department’s use of force policy. Id. at 12.

Michael B. Halpin, Esq. SPR26/0207 Page 6 February 3, 2026 Exemption (c) did not apply even where the investigation concluded there was no basis to charge the officers with crimes. Id. at 6. In this case, the Office has explained how the responsive records constitute one of the core categories of personnel information useful in making employment decisions regarding an employee. However, based on the information provided in the Office’s response, it is unclear whether the responsive records are related to a law enforcement misconduct investigation. The Office must clarify this. Exemption (o) Exemption (o) applies to: the home address, personal email address and home telephone number of an employee of the judicial branch, an unelected employee of the general court, an agency, executive office, department, board, commission, bureau, division or authority of the commonwealth, or of a political subdivision thereof or of an authority established by the general court to serve a public purpose, in the custody of a government agency which maintains records identifying persons as falling within those categories; provided that the information may be disclosed to an employee organization under chapter 150E, a nonprofit organization for retired public employees under chapter 180, or a criminal justice agency as defined in section 167 of chapter 6. G. L. c. 4, § 7(26)(o). Exemption (p) Exemption (p) applies to: the name, home address, personal email address and home telephone number of a family member of a commonwealth employee, contained in a record in the custody of a government agency which maintains records identifying persons as falling within the categories listed in subclause (o) G. L. c. 4, § 7(26)(p). In its response, under Exemptions (o) and (p), the Office argues the following: Additionally, the investigative report not only concerns an identified/identifiable employee, it contains the personal and personally identifying information of other current and former BCSO employees – information that is separately/ independently protected from disclosure by both the personnel and privacy exemption found at G.L. c. 4, §7, Twenty-Sixth, (c), (o), and (p). Specific, personal and personally identifying information (such as names, dates of birth,

Michael B. Halpin, Esq. SPR26/0207 Page 7 February 3, 2026 social security, home / personal email addresses, and personal telephone numbers) also implicating significant privacy interests that have, pursuant to Somerville v. Supervisor of Public Records, 106 Mass. App. Ct. 39, 43-46 (2025), been balanced against (and been determined to outweigh) the public’s interest in their disclosure. Such information is, therefore, also independently exempt from public disclosure pursuant to the Privacy Exemption found at G. L. c. 4, § 7 (26) (c), (o), and (p). Based on the information provided in the Office’s response, although portions of the records may fall under Exemptions (o) and (p), it is unclear how the records can be withheld in their entirety. Particularly, it is uncertain how non-exempt data is inextricably intertwined with exempt data such that records cannot be segregated. The Office must explain whether the exempt information can be redacted so that segregable portions can be provided. See Reinstein, 378 Mass. at 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any nonexempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Conclusion Accordingly, the Office is ordered to provide Ms. White 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. Ms. White may further appeal the substantive nature of the Office’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Virginia White