Colman Herman v. Soldiers' Home in Holyoke (SPR 20201083)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 17, 2020 SPR20/1083 Mark Yankopoulos, Esq. Legal Counsel/Records Access Officer Soldiers’ Home in Holyoke 110 Cherry Street Holyoke, MA 01040 Dear Attorney Yankopoulos: I have received the petition of Colman Herman appealing the response of the Soldiers’ Home in Holyoke (Home) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on May 15, 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 SPR20/0904 Determination of the Supervisor of Records (June 22, 2020). In my June 22nd determination, I found the Home had not meet its burden to withhold responsive records, in their entirety, under Exemption (f). I also directed the Home to identify records in its possession. Accordingly, I ordered the Home to provide Mr. Herman with a response to the request, provided in a manner 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, Esq. SPR20/1083 Page 2 July 17, 2020 consistent with the order, the Public Records Law and its Regulations. Subsequently the Home provided a supplemental response on July 2, 2020, which provides additional information regarding its exemption claim. Unsatisfied with the Home’s response, Mr. Herman petitioned this office and this appeal, SPR20/1083, 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 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 Home’s July 2nd response In its July 2, 2020 response the Home indicates the number of investigations ongoing from the Governor’s independent investigation, which it notes has concluded, the federal Department of Justice (DOJ), Massachusetts Attorney General’s Office (AGO), and Office of the Inspector General (OIG). The Home states that it issued “Document Preservation Notices” to all of its employees “. . . to ensure the material important to the pending investigations is not altered or destroyed and, thus, will be available for the investigators’ review. A substantially similar document preservation request was made by the AGO.” The Home continues to reiterate that it cannot identify the records in its possession, because “. . . the Request seeks documents that Superintendent Walsh purportedly relied upon to support certain statements he allegedly made to the media about the management of HLY. Assuming Superintendent Walsh made the alleged statement(s) he did so while on an administrative leave. HLY played no part in drafting the alleged statement(s) and does not know which document(s), if any, Superintendent Walsh believes supports his alleged statement. HLY, therefore, cannot identify with more specificity which records, if any, might be responsive to the Request.”

Mark Yankopoulos, Esq. SPR20/1083 Page 3 July 17, 2020 The Home continues to assert that Exemption (f) permits it to withhold “. . . emails sent or received by Superintendent Walsh relating to the outbreak of COVID 19 at the Holyoke Soldiers’ Home.” The Home asserts that “. . . there is a likelihood the premature disclosure of the investigatory materials would prejudice the possibility of effective law enforcement, the pending investigation concerning HLY’s management and organizational operations, and its potential violations of state and federal laws and regulations.” The Home explains that “[d]isclosure 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.” Further, the Home asserts that “. . . 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 Home further explains that “. . . [i]n addition, 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 public interest is served by allowing the investigators to complete their investigations, determine the facts surrounding the operation of HLY, its response to the COVID19 pandemic and the deaths of the veterans.” The Home 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).

Mark Yankopoulos, Esq. SPR20/1083 Page 4 July 17, 2020 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. In my June 22nd determination, I indicated that although this office acknowledges that there is an ongoing investigation, it is this office’s understanding that portions of the responsive records have been released to the public. Therefore, it is unclear how the release of those records would compromise the ongoing investigation or “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest” as required by Exemption (f). Based on the Home’s response, it remains unclear how the release of those portions of the records would compromise the ongoing investigations. It is additionally uncertain how the Home cannot identify the records in its possession. The Home is reminded that to deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § 10(b)(iv); see also 950 C.M.R. 32.06(3)(c)(4). Also, in accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). The Home must clarify these matters. In camera inspection In the alternative, in order to facilitate a determination as to the applicability of the Home’s claims under Exemption (f) to withhold records from disclosure in their entirety, the Home must provide this office with un-redacted copies of a representative sample of responsive records for in camera inspection. See 950 C.M.R. 32.08(4). After I complete my review of the documents, I will return the records to your custody and issue an opinion on the public or exempt nature of the record. The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G.L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Massachusetts Comm’n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding.

Mark Yankopoulos, Esq. SPR20/1083 Page 5 July 17, 2020 Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. I understand a Public Records Division staff attorney contacted your office about this appeal but was unable to reach you prior to the issuance of this decision. The Home may provide this office with an explanation of its position regarding the applicability of Exemption (f) to withhold the records in their entirety. Please be advised that, unlike the materials provided for in camera review, any such additional correspondence would be placed in the file for this appeal and would be subject to public disclosure as a public record. Order Accordingly, the Home is ordered to provide Mr. Herman with a response, 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. In the alternative, the Home may provide this office with un-redacted copies of a representative sample of the responsive records for an in camera inspection. Sincerely, Rebecca S. Murray Supervisor of Records cc: Colman Herman