Hanna Krueger v. Executive Office of Health & Human Services (SPR 20200694)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 11, 2020 SPR20/0694 Alexander D. deBlieck Records Access Officer Executive Office of Health & Human Services One Ashburton Place, 11th Floor Boston, MA 02108 Dear Mr. deBlieck: I have received the petition of Hanna Krueger appealing the response of the Executive Office of Health & Human Services (EOHHS) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on April 9, 2020 Ms. Krueger requested three categories of records, including communications between Holyoke Soldiers Home Superintendent and named individuals, as well as records pertaining to conference calls involving the Superintendent. EOHHS responded on April 22, 2020, denying access to responsive records pursuant to Exemption (f) of the Public Records Law. Unsatisfied with EOHHS’s response, Ms. Krueger petitioned this office and this appeal, SPR20/0694, 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 town 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. 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

Alexander D. deBlieck SPR20/0694 Page 2 May 11, 2020 EOHHS’s April 22nd response In its April 22nd response, EOHHS states “…the records you seek are exempt from disclosure pursuant to M.G.L. c.4, § 7, clause 26(f) as they are subject to a pending investigation.” EOHHS explains it is its “. . . reasonable belief disclosure of such records at this time would compromise investigative efforts. To the extent the records contain information relating to investigative techniques or identifying information relating to witnesses, such information will be exempt from disclosure beyond the completion of the investigations… the public disclosure of identifying information relating to witnesses creates a grave risk to private citizens who volunteer as witnesses as well as agencies’ ability to conduct future investigations. . . .” 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)(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. Attorney Gen., 52 Mass. App. Ct. 244, 248 (2001); Reinstein, 378 Mass. at 290 n.18. 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. Based on EOHHS’s response, it is unclear what records are within its possession. See G. L. c. 66, § 10(a)(ii), (b)(ii); see also 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 . . .”). Further, while EOHHS asserts the responsive records pertain to a pending investigation, it does not explain the subject of the investigation, nor does it describe how the requested records are part of the investigation. Additionally, although EOHHS claims “. . . disclosure of such records at this time would compromise investigative efforts” it is unclear how producing these records, or segregable portions thereof, “would probably so prejudice the possibility of effective

Alexander D. deBlieck SPR20/0694 Page 3 May 11, 2020 law enforcement that such disclosure would not be in the public interest” as required to withhold records under Exemption (f). See Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (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). As a result, I find EOHHS has not met its burden of explaining with specificity how the records, in their entirety, are exempt from disclosure. Order Accordingly, EOHHS is ordered to provide a response to the requestor in a manner consistent with this order, the Public Records Law and its Regulations as soon as practicable. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Sincerely, Rebecca S. Murray Supervisor of Records cc: Hannah Krueger