Kay Lazar v. Executive Office of Health and Human Services - Department of Public Health (SPR 20160781)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords October 13, 2016 SPR16/781 Ms. Helen Rush-Lloyd Records Access Officer Department of Public Health 99 Chauncy Street Boston, MA 02111 Dear Ms. Rush-Lloyd: I have received the petition of Kay Lazar of The Boston Globe appealing the response of the Department of Public Health (Department) to a request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Ms. Lazar requested a copy of an incident report of a death that occurred in August at a specifically identified nursing home. In a response dated September 19, 2016, the Department denied the request, claiming that the responsive record may be withheld under Exemption (f) of the Public Records Law. G. L. c. 4, § 7(26)(f). 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, § lO(c); 950 C.M.R. 32.08(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 town of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). Under the Public Records Law and the Access Regulations (Regulations) all requests for public records must be met with a response within ten (10) days of the request. G. L. c. 66, § lO(b); 950 C.M.R. 32.05. The response may be an offer to provide records, a fee estimate for provision of the records, or a denial. 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(c ); see also District 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. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma.us/pre

Ms. Helen Rush-Lloyd SPR16/781 Page 2 October 13, 2016 If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § lO(a); see also 950 C.M.R. 32.06(2) (where cost of complying with a request for public records is expected to exceed ten dollars ($10.00), custodian ofrecords shall provide written good faith estimate). Once fees are paid, a records custodian must provide the responsive records. To assist in requesting and responding to requests for public records please refer to our publication, A Guide to the Massachusetts Public Records Law. This document is available on the Internet, free of charge, at http://www.sec.state.ma.us/pre/prepdf/guide.pdf. Attorneys on my staff are available during regular business hours to answer general questions regarding the Public Records Law. In addition, members of my staff will visit a records custodian in person to conduct training workshops on the Public Records Law upon request. Please contact my office directly at the telephone number provided in this determination for further information. The Department's September 19 response In its September 19 response you claim the responsive record may be withheld under Exemption (f). 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 G. L. c. 4, §7 (26)(±) 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). An investigative agency is not required to demonstrate prejudice to withhold the identities of voluntary witnesses, informants, or complainants. Reinstein v. Police Commissioner of Boston, 378 Mass. 281, 290 n.18 (1979). You indicate that "the investigation is ongoing and the incident report is exempt" under Exemption (f) "because the material could compromise the investigative efforts if disclosed ...." While the Department claims the responsive record pertains to an ongoing investigation, it does

Ms. Helen Rush-Lloyd SPR16/781 Page 3 October 13, 2016 not explain the subject of the investigation nor does it describe how the requested record is part of the investigation. As a result, the Department did not demonstrate how disclosure of the responsive record "would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest" as required to withhold a record under Exemption (f). I understand an attorney on my staff contacted you about this matter and provided a copy of the file associated with this appeal. You indicated the Department would provide a supplemental response to this request. Conclusion Accordingly, I will consider this appeal closed with the proviso that the Department provide Ms. Lazar with a response to the request, prepared in a manner consistent with this order, the Public Records Law and its Regulations. A copy of any such response must be provided to this office. It is preferable to send an electronic copy oft · s response to this office at pre@sec.state.ma. us. Supervisor of Records cc: Ms. Kay Lazar