Hanna Krueger v. Executive Office of Health & Human Services - Department of Veterans Services (SPR 20200811)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 3, 2020 SPR20/0811 Stuart Ivimey General Counsel Executive Office of Health and Human Services Department of Veterans’ Services 600 Washington Street, 7th Floor Boston, MA 02111 Dear Attorney Ivimey: I have received the petition of Hanna Krueger 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 February 6, 2020, Ms. Krueger requested two categories of records including communications between Holyoke Soldiers Home Superintendent and Secretary, as well as conference calls involving the Superintendent. Previous Determination This request was the subject of a previous determination. See SPR20/0695 Determination of the Supervisor of Records (May 11, 2020). In my May 11th determination, I found the Department provided a supplemental response dated May 11, 2020. Unsatisfied with the Department’s response, Ms. Krueger petitioned this office and SPR20/0811 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). 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 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. SPR20/0811 Page 2 June 3, 2020 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 11th response In its May 11th response, the Department states “…three pending investigations concern the operation, management, and oversight at HLY…[t]he Pearlstein investigation requested DVS to issue ‘Document Preservation Notices’…to ensure the materials important to the Pearlstein Investigation…are not altered or destroyed, and thus will be available for the investigators’ review. All of the documents sought by the Requestor are preserved pursuant to the Pearlstein investigation, and are critical to all pending investigations.” The Department claims “[t]he untimely disclosure of these materials will prejudice the three current investigating entities’ ability to investigate management and organized operations, and potential violations of state and Federal laws and regulations.” The Department explains “[d]isclosure of communications, or other relevant material, may have a chilling effect on the cooperation of persons the investigators intend 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 the future.” The Department further explains “[p]ublic 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 Department notes “DVS does not seek to prevent the release of these documents permanently. DVS’ Response to Requestor’s Request makes clear DVS agrees to produce the material once the investigations have concluded, subject to other applicable exemptions and protections from disclosure, if any.” 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

Stuart Ivimey, Esq. SPR20/0811 Page 3 June 3, 2020 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 this appeal was pending, this office was notified on June 2, 2020, that a representative from the Department intends on providing a supplemental response to Ms. Krueger. Accordingly, the Department is ordered to provide Mr. Krueger with a response 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. Ms. Krueger may appeal the substantive nature of the Department’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Hanna Krueger