Allison Jarmanning v. Executive Office of Health & Human Services - Holyoke Soldiers' Home (SPR 20200717)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 13, 2020 SPR20/0717 Mark Yankopoulos Records Access Officer Soldiers’ Home in Holyoke 110 Cherry Street Holyoke, MA 01040-2829 Dear Mr. Yankopoulos: I have received the petition of Allison Jarmanning of WBUR appealing the response of the Soldiers’ Home in Holyoke (Soldiers’ Home) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Ms. Jarmanning requested a copy of records from February 1, 2020 to March 31, 2020, specifically: • Rosters, schedules or other similar records showing what staff is scheduled to work on which days, which hours, and where; • Records indicating whether a staffer worked in the facility or outside (remote); and • Records indicating how many people used sick time or called out sick each day. By letter dated April 16, 2020, the Soldiers’ Home denied Ms. Jarmanning’s request, in its entirety, pursuant to Exemption (f) of the Public Records Law. As a result, Ms. Jarmanning petitioned the Supervisor of Records (Supervisor), and appeal SPR20/0717 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 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

Mark Yankopoulos SPR20/0717 Page 2 May 13, 2020 exemption or exemptions upon which the withholding is based…”); 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). The Soldiers’ Home’s April 16, 2020 response In its April 16th response, the Soldiers’ Home states, “[i]t is [the Soldiers’ Home’s] reasonable belief that disclosure of such records at this time would compromise investigative efforts and; therefore, is not in the public interest.” 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 Soldiers’ Home claims the responsive records pertain to an active and on-going investigation, the Soldiers’ Home 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 -----------------

Mark Yankopoulos SPR20/0717 Page 3 May 13, 2020 Co. v. Police Comm’r, 419 Mass. 852,857 (1995); Flatley, 419 Mass. at 511. The Soldiers’ Home’s April 16th response did not contain the specificity required in a denial of access to public records. Conclusion Accordingly, the Soldiers’ Home is ordered to provide Ms. Jarmanning 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: Allison Jarmanning, WBUR