Colman Herman v. Executive Office of Health & Human Services - Department of Veterans Services (SPR 20200729)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 18, 2020 SPR20/0729 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 Colman Herman appealing the response of the Department of Veterans’ Services (Department/DVS) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on April 10, 2020, Mr. Herman requested: On April 9, 2020, The Boston Globe reported that Bennett Walsh, the suspended superintendent of the Holyoke Soldiers’ Home, stated the following. “There have been widespread reports in the media that state officials were kept in the dark about what was happening at the Soldiers’ Home during the COVID-19 crisis. . . .We provided updates on a daily basis, sometimes multiple times a day. These updates were by phone, text, email, conference calls and official report forms. These updates were made at various times to the staffs of the Secretary of Veteran Services, the Executive Office of Health and Human Services and the Department of Public Health. . . .” Please provide me with hard copies and electronic copies of the above communications as they relate to the Executive Office of Health and Human Services. The Department provided an initial response on April 27, 2020, requesting additional time to respond. The Department provided a second response on May 4, 2020, denying access to responsive records pursuant to Exemption (f) of the Public Records Law. G. L. c. 4, § 7(26)(f). Unsatisfied with the Office’s response, Mr. Herman petitioned this office and this appeal, SPR20/0729, was opened as a result. 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. SPR20/0729 Page 2 May 18, 2020 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. 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 May 4th response In its May 4, 2020 response, the Department asserts that the records “. . . to the extent they may 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 that it is its “. . . reasonable belief disclosure of such records at this time would compromise investigative efforts. . . . It is public knowledge that three investigations are ongoing concerning the management of the Holyoke Soldiers’ Home (HLY). Two of these agencies, the Federal Department of Justice (DOJ) and the Massachusetts Attorney General’s Office (AGO), have the authority to prosecute criminal matters. In addition, the Governor has appointed an independent investigator, Mark W. Pearlstein, Esq., to ‘focus both on the events inside the facility that led to the tragic deaths of veterans in the Holyoke Soldiers’ Home, and on management and organizational oversight of the COVID-19 response in the Holyoke Soldiers’ Home.’” The Department notes that “Attorney Pearlstein ordered DVS to issue Document Preservation Notices compelling the preservation of certain classes of documents related to HLY because they are central to his investigation.” The Department states that “[t]he purposes of Exemption (f) include the avoidance of premature disclosure of an investigator’s case; the prevention of the disclosure of procedures or sources of information; and the encouragement of individual citizens to come forward and speak freely with investigators concerning matters under investigation.” The Department posits that “[t]he requested documents are clearly relevant to the three open investigations. Moreover, they are investigatory material relating to open matters under review that, by necessity, must occur out of public view. The collection of communications relevant to an investigation by law enforcement agencies such as the DOJ or the AGO is an important and entirely legitimate function.”

Stuart Ivimey, Esq. SPR20/0729 Page 3 May 18, 2020 The Department further explains that it “. . . has a strong interest in encouraging individuals to cooperate with the three investigations without apprehension that such information would be made public prior to their completion. Such disclosure may have a chilling effect on the cooperation offered by persons that the investigators intend to interview later. Moreover, public disclosure will dis-incentivize informants or complainants from coming forward to divulge information about HLY as part of the current investigations, and in the future. Exemption (f) is intended to allow investigative officials to provide an assurance of confidentiality to individuals so that they will speak openly about matters under investigation.” The Department contends that “. . . the release of the requested records is likely to paint an incomplete picture of the management of HLY and DVS at the relevant time. Requestor should not be permitted to obtain otherwise protected documents by merely serving his records request against DVS instead of requesting them from the three investigators.” 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 v. Police Comm’r of Boston, 378 Mass. 281, 290 n.18 (1979). 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. Subsequent to the opening of this appeal, I learned that on May 18, 2020, the Department provided Mr. Herman with a supplemental response. Conclusion Accordingly, I will now consider this administrative appeal closed. Mr. Herman may appeal the substantive nature of the Department’s response within ninety calendar days. See 950 C.M.R. 32.08(1).

Stuart Ivimey, Esq. SPR20/0729 Page 4 May 18, 2020 Sincerely, Rebecca S. Murray Supervisor of Records cc: Colman Herman