Colman Herman v. Soldiers' Home in Holyoke (SPR 20200870)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 12, 2020 SPR20/0870 Mark Yankopoulos Records Access Officer Executive Office of Health and Human Services Soldiers’ Home in Holyoke 110 Cherry Street Holyoke, MA 01040 Dear Mr. Yankopoulos: I have received the petition of Colman Herman appealing the response of the Executive Office of Health and Human Services/Soldiers’ Home in Holyoke (Office/Home) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on May 13, 2020, Mr. Herman requested “… 1)[r]ecords of all the expenses Bennett Walsh incurred in his capacity as superintendent of the Soldiers’ Home in Holyoke for the period March 1, 2019 to February 29, 2020 … [including] but not limited to, the following: (a) Expense reports, including back up receipts, (b) Credit cards statements including back up receipts (c) Automobile expense records, including back up receipts (d) Any and all other records that document Superintendent’s … expenses, including back up receipts 2) The written employee reimbursement policy of the Home.” The Office stated that the records requested are not subject to public disclosure pursuant to Exemptions (a) and (f). Unsatisfied with the Office’s response, Mr. Herman petitioned this office and SPR20/0870 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

Mark Yankopoulos SPR20/0870 Page 2 June 12, 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(d)(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…”); 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 Office’s May 29th response In its May 29th response the Office outlined the number of investigations ongoing from the Governor’s independent investigation, federal Department of Justice, Massachusetts Attorney General’s Office and Office of the Inspector General (OIG). The Office stated that , “[a]ll of the documents sought … are confidential and are not subject to public disclosure [pursuant] to M. G. L. c. 4, § 7 clause 26 (a) (f).” Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7(26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public's right to inspect records under the Public Records Law is restricted. See Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 154 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-546 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either "shall not be a public record," "shall be kept confidential" or "shall not be subject to the disclosure provision of the Public Records Law." The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. In its May 29th response, the Office cited, G. L. c. 12A §13 which states in pertinent part as follows: “All records of the office of inspector general shall be confidential unless, it is

Mark Yankopoulos SPR20/0870 Page 3 June 12, 2020 necessary for the inspector general to make such records public in the performance of his duties, and shall not be public records as defined in section seven of chapter four. G. L. c.12A, § 13. In its May 29th response, the Office stated that the “OIG requested [the Home] to produce certain records, including the records requested [by Mr. Herman].” 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 289-290. In its May 29th response, the Office assered that, “as the documents sought … are subject to the pending OIG investigation, as well as the [Governor’s] and Attorney General’s investigations ... they are … exempt from disclosure at this time … [because] disclosure would compromise the investigative efforts.” Burden of specificity in responding and claiming exemptions Under the Public Records Law, the burden shall be on the custodian to cite with specificity the exemption which applies. 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 Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511 (custodian has the

Mark Yankopoulos SPR20/0870 Page 4 June 12, 2020 burden of establishing the applicability of an exemption). The Office is advised that a records custodian is required to not only cite an exemption, but to specifically explain the applicability of the exemption to the requested records in order to comply with the Public Records Law and its Access Regulations. Despite the Office’s response, it remains unclear what responsive records the Office possesses. The Office must identify what records it has in its possession, custody or control that are responsive to Mr. Herman’s request. See G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3)(c)(4) (a records access officer must provide a written response that identifies the record, categories of records, or portions of the record it intends to withhold). Although the Office indicates that it is withholding the records pursuant to Exemption (a), it is unclear how an expense report(s) constitutes a record of the Office of the Inspector General. The Office must clarify this issue. Further, the Office must provide a detailed response to specifically explain how the exemptions apply to withhold the requested records in compliance with the Public Records Law. As a result, I find that the Office did not satisfy its burden in responding to this records request. Order Accordingly, the Office is ordered to provide Mr. Herman with a response to the request, provided 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: Colman Herman