443 Mass. 587 | Mass. | 2005
We consider in this case whether G. L. c. 66, § 10, the public records law,
We conclude that the records requested were “made or received” by a public official, the sheriff, as those terms are used in G. L. c. 4, § 7, Twenty-sixth, and that no exemption to the statutory definition of public records or other provision of law insulates the records from inspection.
1. Background. The parties do not contest the essential facts. The office of Barnstable County sheriff is a public, elected position. G. L. c. 37, § l.
In the past, Barnstable County sheriffs have appointed private individuals to serve as “honorary” deputy sheriffs. According to
Shortly after he took office, Sheriff Cummings largely abolished this practice.
The sheriff has appointed more than one hundred reserve deputy sheriffs. A letter, printed on the sheriff’s official letterhead and sent as part of an application package, recites the responsibilities of reserve deputy sheriffs: they have “all the powers, duties, authority, responsibility and honors of a Deputy Sheriff when called upon by the High Sheriff or the Special Sheriff, as provided for by [G. L. c. 37, § 13, and G. L. c. 269, § l].”
Each successful reserve deputy sheriff candidate is notified by the sheriff in a letter bearing the sheriff’s letterhead. Each is informed that he or she “takes an oath of public trust.” The successful applicant also is given a photographic identification card, made by the sheriff’s personnel director and paid for by the sheriff’s office, bearing the title “reserve deputy sheriff.” The reserve deputy sheriff is informed that he or she may purchase at a police supply store a badge that identifies the holder as a deputy sheriff.
We discuss briefly some aspects of the Barnstable County Deputy Sheriffs Association. Deputy sheriffs employed by Barn-stable County are members of the association, as were nonemployee “honorary” deputy sheriffs appointed in the past. The
2. Discussion. The newspaper commenced this action when the sheriff refused to permit the inspection of “those records in [his] possession regarding reserve deputies appointed by [him] or any predecessor in [his] office.”
The public records law, G. L. c. 66, § 10, requires that every person permit the inspection and examination of any public records in his or her “custody.” See note 1, supra. General Laws c. 4, § 7, Twenty-sixth, in turn, defines “[p]ublic records” as all materials “made or received by any officer or employee” of any “political subdivision” of the Commonwealth unless such materials fall within an exemption specified in that they are:
*592 “(a) specifically or by necessary implication exempted from disclosure by statute; . . . (c) . . . relat[ed] to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy; ...(e) notebooks and other materials prepared by an employee of the commonwealth which are personal to him and not maintained as part of the files of the governmental unit.”14
The Legislature’s definition of public records “manifests a legislative intent to provide broad public access to government documents subject only to limited exemptions.” General Elec. Co. v. Department of Envt’l Protection, 429 Mass. 798, 802 (1999). The statute provides the operative standard: in any court proceeding “there shall be a presumption that the record sought is public, and the burden shall be upon the custodian to prove with specificity the exemption which applies.” G. L. c. 66, § 10 (c). Against this presumption of production, we address in turn the sheriff’s assertion that the records were created in his (and the special sheriff’s) “personal” capacities, and his claims that the records are the property of the association.
The power to appoint reserve deputy sheriffs inheres in the office of the Barnstable County sheriff. When a public officer’s actions are possible only by virtue of the public office he or she holds, they are official acts, and the evidence here is overwhelming that, when he appoints reserve deputy sheriffs, the sheriff acts as a public official and not as a private individual. Reserve deputy sheriffs “serve at the pleasure of the Sheriff”; they do not serve at the pleasure of private Citizen Cummings. Reserve
The sheriff argues that the resources utilized in the process of appointing reserve deputy sheriffs are largely those of the association, that the special sheriff’s involvement in the appointment process is without compensation, and that the expenditure of resources of the sheriff’s office in the process, such as reviewing the criminal history of applicants, is minimal, and no more than is customarily afforded to other private associations.
As to the argument that the records sought by the newspaper are those of the Barnstable County Deputy Sheriffs Association, it is noteworthy that the association does not appoint reserve deputy sheriffs. That appointment as a reserve deputy sheriff automatically constitutes membership in an association does not detract from the capacity in which the sheriff acts. The newspaper seeks nothing from the association. It did not request from the association a list of the association’s members. It
That reserve deputy sheriffs serve as “volunteers,” and are not employees of Barnstable County is also of no import. The public records laws allow inspection of records of the names and addresses of private persons with far less connection to a public official than evidenced in this case. Attorney Gen. v. Collector of Lynn, 377 Mass. 151 (1979) (holding that records of tax delinquents are subject to the public records laws). Records of appointments made by a public official as a consequence of his or her official status cannot be withheld from inspection and examination on an assertion that those appointments are “private.” See Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 436 Mass. 378, 385 (2002) (“Allowing [an official] to decide unilaterally, without any oversight, what documents are subject to disclosure and what documents are exempt is wholly inconsistent with the purpose of G. L. c. 66, § 10”).
Our conclusion that the sheriff’s records concerning the appointment of reserve deputy sheriffs are public records does not end our inquiry, for we must resolve whether any exceptions to G. L. c. 4, § 7, Twenty-sixth, exclude the names and addresses of reserve deputy sheriffs from the definition of “public records,” and whether allowing inspection of such records would otherwise constitute an unconstitutional or other unlawful invasion of privacy.
First, the sheriff argues that the records “do not serve any public purpose or function” and “are personal to him and not maintained as part of the files of the governmental unit,” as exempted under G. L. c. 4, § 7, Twenty-sixth (e). For substantially the same reasons we discussed earlier, subclause (e) does not apply. Materials pertaining to the appointment and supervision of reserve deputy sheriffs are not “personal” to the sheriff or any of his employees, but inhere in the office of sheriff, regardless of which individual holds the position.
The sheriff further contends that disclosure of the names and addresses of reserve deputy sheriffs would “constitute an unwarranted invasion of privacy.” G. L. c. 4, § 7, Twenty-Sixth (c). The argument has no merit. We have held that subclause (c)
The sheriff further argues that, if he discloses the requested records, he may be exposed to liability under G. L. c. 214, § 1B, or G. L. c. 12, § 11I.
The sheriff’s constitutional claim to the effect that the request for records “potentially invokes” protected privacy interests of the reserve deputy sheriffs is equally without merit. Any constitutional protection of individual privacy does not insulate the disclosure of the names and addresses of those who have applied to, and been appointed by, a public official, regardless of the scope of their subsequent responsibilities. See Attorney
The records requested by the newspaper are public records and must be made available for inspection and examination. The judgment is vacated. The case is remanded to the Superior Court for further proceedings consistent with this opinion.
So ordered.
General Laws c. 66, § 10, provides, in pertinent part: “Every person having custody of any public record, as defined in clause Twenty-sixth of section seven of chapter four, shall, at reasonable times and without unreasonable delay, permit it. . . to be inspected and examined by any person ....’’
We acknowledge the amicus brief filed by the Massachusetts Sheriff’s Association.
General Laws c. 4, § 7, Twenty-sixth, which we recite and discuss below, defines a “public record,” exempting certain classes of materials from inspection and examination.
General Laws c. 37, § 1, provides, in pertinent part: “A sheriff shall be elected in each county . . . .” For most of the Commonwealth’s history, sheriffs have been employees of their respective counties. Since the enactment of G. L. c. 34B, inserted by St. 1999, c. 127, § 53, several counties have been abolished as government entities. The sheriffs of those counties are now employees of the Commonwealth. See G. L. c. 34B, § 12. Barnstable County retains its ancient status, and the salaries of the sheriff and his staff are paid by Barnstable County. G. L. c. 37, § 17.
General Laws c. 37, § 4, provides, in pertinent part, that a sheriff “shall appoint a special sheriff [who] shall have the authority of a deputy sheriff.” General Laws c. 37, § 5, provides, in pertinent part: “If, by reason of illness, absence, interest, or otherwise, the sheriff is unable to perform his official duties, they shall be performed by the special sheriff. . . .”
General Laws c. 37, § 3, provides: “A sheriff may appoint deputies, who shall be sworn before performing any official act.” Pursuant to his authority under this section, the sheriff has deputized many employees and certain non-employees, such as civil process servers and members of other law enforcement agencies.
The special sheriff noted during his deposition that Sheriff Cummings has on a few occasions appointed an individual, such as a visiting foreign dignitary, as an “honorary” deputy sheriff. Sheriff Cummings “grandfathered” many of the nonemployee deputy sheriffs previously appointed. These individuals appear to retain the title “deputy sheriff.”
The sheriff maintains that reserve deputy sheriffs are no longer officially sworn as deputy sheriffs. See note 6, supra. As characterized by the sheriff, reserve deputy sheriffs have “no police powers,” and their “status” is “honorary” and not indicative of any “civil or public office.” We need not decide, as the sheriff urges that we do, whether the reserve deputy sheriffs are holders of public office. Our holding rests on a conclusion that the sheriff, in appointing reserve deputy sheriffs, exercises a power of his public office.
General Laws c. 37, § 13, provides, in pertinent part, that sheriffs “may
The badge is slightly smaller than, but otherwise similar to, those of deputy sheriffs employed by Barnstable County.
The record does not evidence the content of this ceremony or the particulars of the oath there taken. The sheriff testified that the oath includes language indicating that reserve deputy sheriffs have no official “powers until called upon by the sheriff.” See also note 6, supra.
The “youth ranch” has been operated for many years by at least one former sheriff and continues in operation by the current sheriff. It is located on land leased by the sheriff’s office from the town of Barnstable. The director of the ranch is an employee of the sheriff’s office. Sheriff Cummings testified that while previously the ranch was run “entirely” by the association, since he assumed office, he has “brought the day-to-day operations” of the ranch “under the sheriff’s office.”
In a postargument submission, the newspaper limited its request, and now seeks to inspect only documents evidencing the names and addresses of reserve deputy sheriffs. The newspaper never had sought to inspect any records in the possession of the association.
The statute contains additional exceptions, which the sheriff does not contend apply to the records requested by the newspaper in this case, and any such claims are therefore waived. These include certain records relating “solely to internal personnel rules and practices of the government unit”; certain records of “inter-agency or intra-agency memoranda or letters relating to policy positions”; certain law enforcement investigatory materials; certain trade secrets; certain early bids on government contracts; certain appraisals of real property; names and addresses of persons referred to in applications to carry or possess firearms; certain test questions and answers; certain health care services contracts; certain blueprints and diagrams; the addresses and telephone numbers of certain Commonwealth employees; and the names, addresses, or telephone number of family members of certain Commonwealth employees. G. L. c. 4, § 7, Twenty-sixth, (b), (d), and (f) through (p), as amended through St. 2004, c. 149, § 8.
The sheriff argues that the public records laws apply only to documents created by an individual while acting in an “official capacity.” The term “official capacity” stems from the form of pleading in Federal courts that allows the successors to vacated public offices to be substituted for their predecessors. Hafer v. Melo, 502 U.S. 21, 25 (1991). In this case the evidence is clear that the sheriff acts in his official capacity when appointing reserve deputy sheriffs.
As it is not relevant to our determination, we do not consider whether the sheriff may use, as he claims, the resources of his office to further the interests of a private association without violating applicable law.
General Laws c. 214, § 1B, provides: “A person shall have a right against unreasonable, substantial or serious interference with his privacy.” General Laws c. 12, § 111, allows civil actions to redress violations of constitutional rights.
Our holding does not implicate the privacy of law enforcement personnel who are protected by G. L. c. 66, § 10 (d): “The home address and home telephone number of law enforcement, judicial, prosecutorial, department of youth services, department of social services, department of correction and any other public safety and criminal justice system personnel shall not be public records . . . .” Here, according to the sheriff, the reserve deputy sheriffs exercise no law enforcement functions.