Hanna Krueger v. Executive Office of Health & Human Services (SPR 20200812)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 3, 2020 SPR20/0812 Alexander D. deBlieck Records Access Officer Executive Office of Health & Human Services One Ashburton Place, 11th Floor Boston, MA 02108 Dear Mr. deBlieck: I have received the petition of Hanna Krueger appealing the response of the Executive Office of Health & Human Services (EOHHS) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on April 9, 2020 Ms. Krueger requested three categories of records, including communications between Holyoke Soldiers Home Superintendent and named individuals, as well as records pertaining to conference calls involving the Superintendent. Previous Determination This request was the subject of a previous determination. See SPR20/0694 Determination of the Supervisor of Records (May 11, 2020). In my May 11th determination, I found EOHHS had not met its burden of explaining with specificity how the records, in their entirety, are exempt from disclosure under Exemption (f). I ordered EOHHS to provide a response to the requestor in a manner consistent with the order, the Public Records Law and its Regulations as soon as practicable. EOHHS provided a supplemental response to the requestor on May 11, 2020. Unsatisfied with EOHHS’s response, Ms. Krueger petitioned this office and this appeal, SPR20/0812, 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). 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

Alexander D. deBlieck SPR20/0812 Page 2 June 3, 2020 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. EOHHS’s May 11th response In its May 11th response, EOHHS states “…three pending investigations concern the operation, management, and oversight at HLY…[t]he Pearlstein investigation requested EOHHS 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.” EOHHS 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.” EOHHS 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.” EOHHS 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.” EOHHS notes “EOHHS does not seek to prevent the release of these documents permanently. EOHHS’ Response to Requestor’s public records request makes clear EOHHS 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 would probably so prejudice the possibility of effective law enforcement that such

Alexander D. deBlieck SPR20/0812 Page 3 June 3, 2020 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. Based on the EOHHS’s response, this office acknowledges that EOHHS has demonstrated that there is an ongoing investigation. Although EOHHS may withhold identifying information of voluntary witnesses, I find the Department has not demonstrated how disclosure of the records, even in a redacted format, "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). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Order Accordingly, EOHHS is ordered to provide a response to the requestor in a manner consistent with this order, the Public Records Law and its Regulations as soon as 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: Hannah Krueger