Colman Herman v. Executive Office of Health & Human Services - Department of Veterans Services (SPR 20200809)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 2, 2020 SPR20/0809 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. Previous appeal The requested records were the subject of a previous appeal. See SPR20/0729 Determination of the Supervisor of Records (May 18, 2020). I closed SPR20/0729 after the Department provided a response on May 18, 2020. Unsatisfied with the Department’s response, Mr. Herman petitioned this office and this appeal, SPR20/0809, 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. SPR20/0809 Page 2 June 2, 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 18th response In its May 18, 2020 response, the Department indicates that Governor Baker hired a special attorney to conduct an investigation which focuses “‘. . . 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.’ HLY is within DVS. M.G.L. c. 6A, § 16. Further, the Federal Department of Justice (‘DOJ’), which has both civil and criminal enforcement powers, has commenced a second investigation of HLY. The Massachusetts Attorney General’s Office (‘AGO’) is conducting a third investigation of HLY, and also has both civil and criminal enforcement authority.” The Department explains that “[t]hese three pending investigations concern the operation, management, and oversight at HLY. Two of these are being conducted by entities empowered to bring both civil and criminal charges. The Pearlstein Investigation requested DVS to issue ‘Document Preservation Notices’ to all of its managers and certain staff members. These notices required the preservation of the following: 1. [a]ll materials related to infection control at the Holyoke Soldiers’ Home; 2. [a]ll materials related to the Holyoke Soldiers’ Home’s response to the COVID-19 pandemic; and 3. [a]ll materials related to the recent deaths at the Holyoke Soldiers’ Home.” The Department further explains that “[t]he purpose of the Document Preservation Notices is to ensure the materials important to the Pearlstein Investigation, and the other pending investigations, are not altered or destroyed and, thus, will be available for the investigators’ review. All of the documents sought by Requestor are preserved pursuant to the Pearlstein Investigation, and are critical to all pending investigations.”

Stuart Ivimey, Esq. SPR20/0809 Page 3 June 2, 2020 Citing case law explaining the policy considerations behind Exemption (f), the Department asserts that the requested records fall within this exemption, because “. . . it is obvious that any document reflecting upon Mr. Walsh’ actions concerning the Holyoke Soldiers’ Home during the COVID-19 crisis is relevant to the three pending investigations. Any such document would necessarily be subject to the Document Preservation Notices. Such document(s) might tend to prove or disprove facts concerning the management of the Soldiers’ Home.” The Department asserts that “[t]he requested materials are subject to Exemption (f) because they are investigatory material compiled as part of three active investigations outside of the public view by law enforcement or other investigatory officials the disclosure of which would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” The Department contends that “[t]he untimely disclosure of these materials will prejudice the three current investigating entities’ ability to investigate management and organizational operations, and potential violations of state and Federal laws and regulations. . . . Disclosure of communications, or other relevant material, may have a chilling effect on the cooperation of persons the investigators intends to interview later. Public disclosure may also dis-incentivize informants or complainants from coming forward to divulge information about HLY, which may be necessary to 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. See Bougas, 371 Mass at 63.” The Department states that “[f]urther, public disclosure at this time may also cause confusion and inaccurate memories of persons yet to be interviewed. The success of the investigations depends upon the accurate memories of all witnesses. Incomplete information, facts or statements contained in the requested communications may influence the memories of persons who are exposed to such communications, either directly or through the interpretations and conclusions contained in media stories purportedly based upon the material. These faded or influenced memories can adversely affect the search for truth, which is the purpose of the investigations. The outcome of the investigations would be suspect.” The Department further contends that “. . . the release of the requested records may paint an incomplete picture of the management of HLY at the relevant time. The release of possibly erroneous or incomplete information would not serve the interests of the public, the subjects of the investigation, or state and municipal officials, who rely on the fair and accurate outcome of the investigations. Witnesses are also entitled to their privacy and the maintenance of their good names, which cannot be assured if the requested materials are released.” The Department posits that “[i]t is beyond question that Pearlstein, DOJ, and AGO would be successful in asserting Exemption (f) if they were faced with the identical document request because the responsive documents are part and parcel of their investigations. Requestor should not be permitted to obtain otherwise protected documents by merely serving her records request upon custodians of the investigative material, such as DVS. Exemption (f) becomes meaningless if a requestor is permitted to circumvent the investigator’s prerogative to maintain the confidentiality of their investigation by merely serving a records request upon the agency, which

Stuart Ivimey, Esq. SPR20/0809 Page 4 June 2, 2020 provided the documents necessary to the investigation.” The Department concludes that “[b]y virtue of the foregoing, DVS has demonstrated all of the documents sought by the Request are subject to Exemption (f), as the communications are being preserved and compiled out of the public view by law enforcement or other investigatory officials, and the disclosure of such communications would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest. The public interest is served by allowing the investigators to complete their investigations, determine the facts surrounding the operation of HLY, its response to the COVID 19 pandemic and the deaths of the veterans.” The Department indicates that once the investigation is complete it would produce responsive records subject to redactions. 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. While this appeal was pending, this office was notified that a representative from the Department intends on providing a supplemental response to Mr. Herman regarding his request. Accordingly, the Department is ordered to provide Mr. Herman with a response to his request in a manner consistent with this order, the Public Records Law and its Regulations as soon as practicable. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Mr. Herman may appeal the substantive nature of the Office’s response within ninety days. See 950 C.M.R. 32.08(1).

Stuart Ivimey, Esq. SPR20/0809 Page 5 June 2, 2020 Sincerely, Rebecca S. Murray Supervisor of Records cc: Colman Herman