Hanna Krueger v. Executive Office of Health & Human Services - Department of Veterans Services (SPR 20200695)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 11, 2020 SPR20/0695 Stuart Ivimey General Counsel Executive Office of Health and Human Services Department of Veterans’ Services 600 Washington Street, 7th Floor Boston, MA 02111 Dear Attorney Ivimey: I have received the petition of Hanna Krueger appealing the response of the Department of Veterans’ Services (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on February 6, 2020, Ms. Krueger requested two categories of records including communications between Holyoke Soldiers Home Superintendent and Secretary, as well as conference calls involving the Superintendent. The Department responded on April 24, 2020, denying access to the responsive record pursuant to Exemption (f) of the Public Records Law. Unsatisfied with the Department’s response, Ms. Krueger petitioned this office and this appeal, SPR20/0695, 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

Stuart Ivimey, Esq. SPR20/0695 Page 2 May 11, 2020 If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Department’s April 24th response In its April 24th response, the Department states “…[t]he records sought in the PRR, to the extent they exist, are exempt from production under the M.G.L. c.4, § 7, clause 26(f) as they are subject to a pending investigation.” The Department explains it is its “. . . reasonable belief disclosure of such records at this time would compromise investigative efforts.” 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. While this appeal was pending, the Department provided a supplemental response dated May11, 2020. Ms. Krueger may appeal the substantive nature of the Department’s May 11th response, within 90 days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Hanna Krueger