Dusty Christensen v. Executive Office of Health & Human Services (SPR 20200707)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 13, 2020 SPR20/0707 Alexander deBlieck Records Access Officer Executive Office of Health & Human Services One Ashburton Place, Room 1109 Boston, MA 02108 Dear Mr. deBlieck: I have received the petition of Dusty Christensen 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, Mr. Christensen requested: • “Any email communications, including their attachments, exchanged between Holyoke Soldiers' Home Superintendent Bennett Walsh — using any official government email address or [an identified email address] — and anyone at the Executive Office of Health and Human Services, the Executive Office of Veterans' Services or the Department of Public Health from the time period of Feb. 1, 2020, to April 13, 2020.” • “Any other communications — including but not limited to text messages, records of phone calls and letters — exchanged between Holyoke Soldiers' Home Superintendent Bennett Walsh and anyone at the Executive Office of Health and Human Services, the Executive Office of Veterans' Services or the Department of Public Health from the time period of March 1, 2020, to April 13, 2020.” EOHHS responded on April 27, 2020, withholding responsive records pursuant to Exemption (f). Unsatisfied with this response, Mr. Christensen petitioned this office and this appeal, SPR20/706, 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). 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 deBlieck SPR20/0707 Page 2 May 13, 2020 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. Please be advised, “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). The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). Also, in accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). EOHHS’s April 27th response In its April 27th response, EOHHS states that responsive records, “to the extent they exist, are exempt under M.G.L. c.4, § 7, clause 26(f) as they are subject to pending investigations.” EOHHS explains it is its “reasonable belief [that] disclosure of these 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.

Alexander deBlieck SPR20/0707 Page 3 May 13, 2020 In its response, EOHHS states that “to the extent [responsive records] exist, [they] are exempt…” under Exemption (f). Based on EOHHS’s response, it is unclear whether it possesses responsive records. The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. 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 . . .”). As such, EOHHS must clarify whether it possesses records responsive to Mr. Christensen’s request. 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 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. Conclusion Accordingly, EOHHS is ordered to provide a response to Mr. Christensen 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: Dusty Christensen