Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Friday, March 18, 2005

Supreme Judicial Court Rules that Sheriff's Records Must Be Released

The Cape Cod Times began investigating the goings-on in the Sheriff's Department of Barnstable County when one of its reserve deputies was indicted, and later resigned from the force. When it discovered that the Sheriff had a list of over 200 names of deputies, it sued to obtain the list. The Sheriff refused to divulge them, citing Massachusetts G. L. c. 4, [section] 7, the privacy right of persons not subject to the G. L. chapter 66, [section] 10, the open records law. A lower court judge sided with the Sheriff in 2003. The Supreme Judicial Court on its own initiative took up the case from the Appeals court, and issued its judgment on March 7, ruling that although the records were created by a private entity, the Barnstable County Deputy Sheriffs Association, they were "`made or received' by a public official, the sheriff, as those terms as used in G. L. c. 4 [section] 7, Twenty-sixth, and that no exemption to the statutory definition of public records or other provision of law insulates the records from inspection."

The Court examined, among other things, the history of the practice of appointing deputy sheriffs, in order to establish that the persons involved in the private association served a public, rather than a private function. "In the past, Barnstable County sheriffs have appointed private individuals to serve as "honorary" deputy sheriffs. According to the special sheriff of Barnstable County honorary deputy sheriffs were sworn in as deputy sheriffs, ostensibly engaged in no law enforcement functions, and were not employees of the sheriff's office. Shortly after he took office, Sheriff Cummings largely abolished this practice.  In its place he instituted a system of appointing "reserve deputy sheriffs." The sheriff contends that his current practice differentiates more clearly than in the past between deputy sheriffs who are employees of Barnstable County or otherwise have law enforcement powers, and private citizens without law enforcement powers, now designated "reserve deputy sheriffs." 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, § 1]."  The appointment of reserve deputy sheriffs is directed by the sheriff and his subordinates. A potential reserve deputy sheriff completes an application, which he or she mails to the sheriff's secretary, an employee of the sheriff's office. The application is then forwarded to the special sheriff, an employee of Barnstable County and the sheriff's highest ranking subordinate. See G.L. c. 37, §§ 4, 5, and note 5, supra. Applicants authorize "the Sheriff of Barnstable County, Massachusetts" to conduct "a background investigation" and the special sheriff directs employees to use the resources of the office to perform such background checks. After the completion of a background check, the special sheriff and two officers of the association review the application before the special sheriff makes a recommendation to the sheriff. The final decision to appoint an applicant is made by the sheriff. 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.  The sheriff administers an oath to each reserve deputy sheriff at what is characterized as a "ceremonial gesture without legal consequence."

The Court noted that "it is not disputed that records "made or received" by the sheriff, an elected officer and employee of Barnstable County, a political subdivision of the Commonwealth, are subject to the public records laws. It is not disputed that the records requested by the newspaper are located in the sheriff's office, in a file maintained by, and under the control of, a public employee, the special sheriff. The sole question is whether the sheriff may nevertheless refuse to allow inspection and examination of these records on his assertion that the records are "private." In the circumstances of this case, that claim is untenable. 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:
"(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." 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 deputy sheriffs agree "to obey the lawful commands of the Sheriff," not the commands of Citizen Cummings. Cummings will have no authority to appoint reserve deputy sheriffs after he leaves office. Rather reserve deputy sheriffs (if any) will serve at the pleasure of his successors. The "real party in interest" here "is the governmental entity" of the Barnstable County sheriff, not Cummings, "the named official." See Hafer v. Melo, 502 U.S. 21, 25 (1991)."

For these reasons, said the Court, "[t]he 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.

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