Colman Herman v. Soldiers' Home in Holyoke (SPR 20201159)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 27, 2020 SPR20/1159 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.” Previous appeals This request was the subject of a previous appeal. See SPR20/0870 Determination of the Supervisor of Records (June 12, 2020). Unsatisfied with the response, Mr. Herman appealed and SPR20/1159 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 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 SPR20/1159 Page 2 July 27, 2020 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(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 Home’s July 10th response In its July 10th response the Home outlined the Superintendent’s expenses and the reimbursement requests it maintains including “requests for travel, lodging, meal expenses and copies of receipts supporting those requests.” Further the Home states it “maintains copies of requests to reserve vehicles.” The records are now referred to as “Requested Records.” The Home outlined the number of ongoing investigations from the Federal Department of Justice (DOJ), Massachusetts Attorney General’s Office (AGO) and Office of the Inspector General (OIG). The Home stated, in part, that the Requested Records sought are “confidential and are not subject to public disclosure [pursuant] to M. G. L. c. 4, § 7 clause 26 (a) and (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.

Mark Yankopoulos SPR20/1159 Page 3 July 27, 2020 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 July 10th response, the Home cited, G. L. c. 12A, §§ 9 and 13 which state in pertinent part as follows: “… nor shall any documents provided pursuant to this section be made public until such time as it is necessary for the inspector general to do so in the performance of his duties.” G. L. c.12A, §9 “All records of the office of inspector general shall be confidential unless, it is 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 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. Current Appeal In its July 10th response, the Home stated that, “[p]ursuant to the OIG’s statutory authority, M.G.L. c.12A, § 9, the OIG requested that the Home preserve and produce certain

Mark Yankopoulos SPR20/1159 Page 4 July 27, 2020 records, including the Requested Records. The Requested Records were provided to the OIG pursuant to its pending investigation … [and] these records remain confidential until the OIG determines … that it is necessary to make the record public…” The Home further asserts, “[i]t is the Home’s reasonable belief disclosure of such records at this time would compromise investigative efforts.” The Home states that it issued “Document Preservation Notices” to all of its employees to preserve related records and a similar documents preservation request was made by the AGO. The Home explains that it, “does not seek to prevent the release of these documents permanently. … [the] Home agrees to produce the material once the investigations have concluded, subject to other applicable exemptions and protections from disclosure, if any … The public interest is served by allowing the investigators to complete their investigations, determine the facts surrounding the operation of the Home, its response to COVID 19 pandemic and the death of the veterans.” Despite the Home’s response, it remains unclear how all the expense reports are exempt under the OIG statutes. In fact, in its response, the Home states that “OIG is not the custodian of the Requested Records.” Also, I find it remains unclear why the Home cannot provide segregable portions of the responsive records. Any non-exempt segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Thus, I find that the Home has not satisfied its burden in withholding the requested records in their entirety. Conclusion Accordingly, the Home 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