Sharkey, Kyle v. Canton, Town of - Police Department (SPR 20260390)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 18, 2026 SPR26/0390 Patricia A. Sherrill Deputy Chief of Administration Canton Police Department 1492 Washington Street Canton, MA 02021 Dear Deputy Chief Sherrill: I have received the petition of Kyle Sharkey appealing the response of the Canton Police Department (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 3, 2026, Mr. Sharkey requested: [1] …[A]ny and all emails/recordings/documents from the day [an identified officer] was put on leave to the day of reply to this response that can be made public pertaining to his being put on leave and what stages the investigation is at[;] [2] …[A]ny and all emails/recordings/documents pertaining to any other officer in the Canton PD that are being looked into as well as it comes to the data phone on [an identified individual’s] Cell phone extractions. On January 17, 2026, Mr. Sharkey modified his request to: [1] Any records sufficient to show[:] [a] The date [an identified officer] was placed on leave [b] Whether the leave is paid or unpaid [c] Whether the leave is administrative or disciplinary in nature (Excluding the substantive reasons for the leave) [d] This includes, but is not limited to, personnel action forms, HR notices, or command-level memoranda reflecting the fact of the leave. [2] Non-Investigatory Metadata For any emails, memoranda, or documents responsive to my prior request (even if the contents are exempt), records sufficient to show: [a] Investigation Status and Scope (High-Level) [3] Records sufficient to identify: 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

Patricia A. Sherrill SPR26/0390 Page 2 February 18, 2026 [a] Whether the matter involving [an identified officer] is:  Administrative, criminal, or both [b] Whether the investigation is being conducted by:  Canton Police Department  Internal Affairs  Massachusetts State Police  Another external agency [c] Records sufficient to confirm whether Canton Police Department:  Received data extracted from former [an identified individual’s] cellular phone  Transferred such data to another agency  Reviewed or logged receipt of such data This request does not seek the contents of any extraction, only confirmation of receipt, possession, or transfer, if any. The Department responded on January 16, 2026 and February 4, 2026. Unsatisfied with the Department’s responses, Mr. Sharkey petitioned this office and this appeal, SPR26/0390, 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.

Patricia A. Sherrill SPR26/0390 Page 3 February 18, 2026 Current Appeal In his appeal petition, Mr. Sharkey contends: SJC Ruling on Misconduct Records (2024): The Massachusetts Supreme Judicial Court ruled that records of police-misconduct investigations are not automatically exempt from public disclosure under privacy exemptions, reinforcing that accountability matters take precedence over broad privacy claims[.] In Massachusetts, laws surrounding public records for police officers on paid leave have evolved, particularly with the 2020 police reform act, making it difficult for departments to hide disciplinary investigations behind privacy exemptions. As of 2025-2026, the state continues to strengthen transparency, including pending legislation to increase penalties for non-compliant public records custodians[.] Disciplinary Records & Privacy: While personnel files are often exempt, a 2020 police reform law amended the privacy exemption to state it “shall not apply to records related to a law enforcement misconduct investigation,” the Massachusetts Supreme Judicial Court ruled in 2024. This means a police department cannot use the “personnel file” or “privacy” exemption to withhold records about the reason for an officer’s paid leave… The Department’s January 16th and February 4th Responses On January 16, 2026, the Department cited Exemption (c) to redact two responsive records and Exemption (f) of the Public Records Law to withhold the remaining requested records in their entirety. G. L. c. 4, § 7 (26)(c); G. L. c. 4, § 7 (26)(f). On February 4, 2026, the Department produced a document dated February 2nd and cited Exemption (c) to redact two responsive records and Exemption (f) of the Public Records Law to withhold the remaining requested records in their entirety. G. L. c. 4, § 7 (26)(c); G. L. c. 4, § 7 (26)(f). 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).

Patricia A. Sherrill SPR26/0390 Page 4 February 18, 2026 First Clause – Personnel Information 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

Patricia A. Sherrill SPR26/0390 Page 5 February 18, 2026 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 asserted: Simple redaction not sufficiently protect the identity of interested parties or sensitive information therein. Furthermore, production of the requested document(s) would constitute an unwarranted invasion of personal privacy and are not matters of public record. See G. L. c. 4, § 7(26)(c). As no redaction would prevent the disclosure of identifiable personnel records and/or an unwarranted invasion of privacy any potentially responsive documents to your request are not deemed a public record. As your request expressly seeks records “that can be made public” the Town does not have any records responsive to your request in its possession, custody, or control. The Department 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 in Mack 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. Exemption (c) did not apply even where the investigation concluded there was no basis to charge the officers with crimes. Id. at 6. The Court in Mack explained that “the crime scene photographs, the home security videos, the still images, the names of officers and public officials, and the videotaped public employee interviews each ‘relate[] to a law enforcement misconduct investigation’ and may not be withheld under the privacy exemption.” Id. at 12. In this case, where the requested records appear to be related to an investigation into alleged law enforcement misconduct, I find the Department has not shown how the withheld records are not “records related to a law enforcement misconduct investigation.” See G. L. c. 4, § 7(26)(c). Consequently, the Department has not met its burden to withhold the records pursuant to Exemption (c) of the Public Records Law. 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

Patricia A. Sherrill SPR26/0390 Page 6 February 18, 2026 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 289-90. 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. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas, 371 Mass. at 62. 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 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.

Patricia A. Sherrill SPR26/0390 Page 7 February 18, 2026 In its response, the Department asserted: Documents encompassed in your request included highly sensitive details regarding an ongoing investigation. Massachusetts Public Records Law strongly discourages the disclosure of such sensitive materials to the public. More specifically, Exemption (f) expressly excludes 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 as public records. See G. L. c. 4, § 7(26)(f). Additionally, the legislature also designed the exemption to allow investigative officials to provide an assurance of confidentiality to private citizens so that they will speak openly about matters under investigation. Any details in witness statements, which if released create a grave risk of directly or indirectly identifying a private citizen who volunteers as a witness are indefinitely exempt. The document(s) sought in your request seeks precisely such materials. Burden of Specificity in Claiming Exemptions Under the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. 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. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. Based on the Department’s response, it is unclear how the responsive records constitute investigatory materials. The Department states that the requested records are associated with an ongoing investigation, but it does not explain the subject of the investigation nor does it describe how the requested records are part of the investigation. Also, the Department did not demonstrate how disclosure of the withheld records “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest,” as required to withhold records under Exemption (f). It is additionally uncertain how the records can be withheld in their entirety. See Reinstein, 378 Mass. at 289-90 (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). The Department must explain whether segregable portions can be provided. Conclusion Accordingly, the Department is ordered to provide Mr. Sharkey 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

Patricia A. Sherrill SPR26/0390 Page 8 February 18, 2026 pre@sec.state.ma.us. Mr. Sharkey may further appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Kyle Sharkey