Dusty Christensen v. Executive Office of Health & Human Services - Department of Veterans Services (SPR 20200711)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 13, 2020 SPR20/0711 Stuart Ivimey, Esq. General Counsel Department of Veterans’ Services 600 Washington Street, 7th Floor Boston, MA 02111 Dear Attorney Ivimey: I have received the petition of Dusty Christensen of the Daily Hampshire Gazette 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 April 13, 2020, Mr. Christensen requested: “Any email communications, including their attachments, exchanged between Holyoke Soldiers’ Home Board of Trustees Chairman Kevin Jourdain [identified email address] and anyone at the Executive Office of Health and Human Services (EOHHS) or the Executive Office of Veterans’ Services (DVS) from January 1, 2020 to April 13, 2020.” In an April 28, 2020 response, the Department denied Mr. Christensen’s request, in its entirety, pursuant to Exemption (f) of the Public Records Law. As a result, Mr. Christensen petitioned the Supervisor of Records (Supervisor), and appeal SPR20/0711 was opened. 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) (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…”); 950 C.M.R. 32.06(3); see 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. SPR20/0711 Page 2 May 13, 2020 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). The Department’s April 28, 2020 response In its April 28th 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 the Department claims the responsive records pertain to an investigation, the Department did not demonstrate how disclosure of the responsive records “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). Burden of specificity Pursuant to the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. G. L. c. 66, § 10(b)(iv) (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 ...”); see also Globe Newspaper -----------------

Stuart Ivimey, Esq. SPR20/0711 Page 3 May 13, 2020 Co. v. Police Comm’r, 419 Mass. 852,857 (1995); Flatley, 419 Mass. at 511. The Department’s April 28th response did not contain the specificity required in a denial of access to public records. Conclusion Accordingly, the Department is ordered to provide Mr. Christensen with a response to the request, in a manner consistent with this order, the Public Records Law and its Regulations as soon as is 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, Daily Hampshire Gazette