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Honorary deputies' names are public, state high court rules

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    News Media Update         MASSACHUSETTS         Freedom of Information         March 15, 2005    

Honorary deputies’ names are public, state high court rules

  • A county sheriff must release more than 200 names of honorary deputies who are members of a private, charitable association, Massachusetts’ highest court ruled last week.

March 15, 2005 — The names of more than 200 reserve deputies appointed by a Massachusetts sheriff to volunteer for a private, philanthropic county sheriffs association must be revealed, the Massachusetts Supreme Judicial Court ruled on March 8.

Reserve deputies for the Barnstable County sheriff have no law enforcement power or training, but are vetted and sworn in by the sheriff’s office and may purchase and carry mini-police badges. The reserve deputies’ names must be public because a public officeholder — Barnstable County Sheriff James M. Cummings — appoints them, Chief Justice Margaret H. Marshall wrote for a unanimous court.

“Whatever the scope of his use of public resources, the fact remains that the sheriff appoints reserve deputy sheriffs solely by virtue of the public office he holds,” making the list of reserve deputies a public record, Marshall wrote.

In early 2003, it was discovered that Christopher LoPilato, a reserve deputy sheriff, was appointed despite having criminal charges pending against him. LoPilato resigned after being indicted for larceny, which piqued the Cape Cod Times‘ interest in a full list of reserve deputies’ names. Sheriff Cummings refused to release the records, pointing to the reserve deputies’ private, philanthropic activities as justification. The Times sued.

In September 2003, a state trial court agreed with Cummings that the records’ withholding was justified, in part, by the deputies’ membership in the private sheriffs association.

The Times appealed, arguing that even though reserve deputies’ duties were carried out via membership with a private association, the position’s application process, background checks and swearing-in ceremonies are all conducted by various sheriff’s office employees on public time.

The case leapfrogged the intermediate appellate level when the Massachusetts Supreme Judicial Court agreed to accept appeal directly from the trial court. The high court held that Cummings’ claim that “privacy” protected his list of reserve deputy appointees was “untenable.”

Emphasizing that the power to appoint reserve deputy sheriffs is an official act, Marshall noted that “Cummings will have no authority to appoint reserve deputy sheriffs after he leaves office.”

Cummings’ response that the official involvement was so minimal as to be irrelevant “misses the point,” Marshall said.

The high court also rejected the trial court’s pronouncement that the records were insulated from public view because they related to members of a private association. 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,” Marshall wrote.

Under Massachusetts law, Cummings has 20 days to ask the high court to reconsider its decision, but he told The Associated Press that he would not appeal and that he plans to release the records.

(Cape Cod Times v. Sheriff of Barnstable County; Media Counsel: Thomas P. Crotty; Boston, Mass.)RL

© 2005 The Reporters Committee for Freedom of the Press

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