Colman Herman v. Executive Office of Health & Human Services - Department of Veterans Services (SPR 20201472)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 28, 2020 SPR20/1472 Matthew Deacon General Counsel Department of Veterans’ Services 600 Washington Street, 7th Floor Boston, MA 02111 Dear Attorney Deacon: I have received the petition of Colman Herman appealing the response of the Department of Veterans’ Services (Department/DVS) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on April 10, 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 Department of Veteran Services. Previous appeals The requested records were the subject of previous appeals. See SPR20/0729 Determination of the Supervisor of Records (May 18, 2020) and SPR20/0809 Determination of the Supervisor of Records (June 2, 2020). I closed SPR20/0809 after this office was notified that a representative from the Department intends on providing a supplemental response. Subsequently, the Department provided a response on August 17, 2020. Unsatisfied with the Department’s response, Mr. Herman petitioned this office and this appeal, SPR20/1472, was 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

Matthew Deacon SPR20/1472 Page 2 August 28, 2020 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 Department’s August 17th response In its August 17, 2020 response, the Department explains that the communications released by Superintendent Walsh was done without the involvement of or authorization from DVS or HLY. The Department states that it has not publicly disclosed the records and neither has any state agency. The Department asserts that, because “[t]he unauthorized release of investigative material does not negate the applicability of the statutory and investigatory exemptions[,]” it maintains that the records are exempt from public disclosure under Exemptions (a) and (f) of the Public Records Law. 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, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977).

Matthew Deacon SPR20/1472 Page 3 August 28, 2020 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. Under Exemption (a), the Department cites the following statutes: G. L. c. 12A, § 13 and G. L. c. 12A, § 9, and explains that “[t]he Requested Records were provided to the OIG pursuant to its pending investigation. While the OIG is not the custodian of the Requested Records, by the terms of M.G.L. c. 12A, §§ 9 and 13, these records are confidential and not public records as defined under M.G.L. c. 4, § 7. The Requested Records remain confidential until the OIG determines, under the authority of M.G.L. c. 12A, §9, that it is necessary to make the records public in order for the OIG to carry out his duties. Accordingly, the Requested Records are also statutorily exempt under M.G.L. c. 4, § 7, clause 26 (a) (exempt by statute).” The statutes, G. L. c. 12A, §13 and G. L. c. 12A, § 9, provide in relevant part: 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. Inspection of records and papers; investigations; summons The inspector general in carrying out the provisions of this chapter shall have access to all records, reports, audits, reviews, papers, books, documents, recommendations, correspondence, including information relative to the purchase of services or anticipated purchase of services from any contractor by any public body, and any other data and material that is maintained by or available to any public body described in section seven which in any way relate to the programs and operations with respect to which the inspector general has duties and responsibilities except records under the provisions of section eighteen of chapter sixty-six as defined in section three of said chapter sixty-six. . . . Any summons issued pursuant to this section shall not be made public by the inspector general or any officer or employee of his department, 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. . . .

Matthew Deacon SPR20/1472 Page 4 August 28, 2020 G. L. c. 12A, § 9. 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. Under Exemption (f), the Department asserts that “[t]he Requested Records were preserved at the commencement of Attorney Pearlstein’s investigation and remain preserved for all pending investigations.” The Department explains that “[w]hile Attorney Pearlstein’s report was publicly released on June 24, 2020 . . . no investigatory material was released.” The Department posits that “[t]he fact that any such documents may have been created prior to the commencement of an investigation and/or are records kept in the ordinary course of business does not negate that they are subject to the pending investigations, and are thus investigative material. M.G.L. c. 4, § 7(26)(f) does not define, nor require, investigative material to be created during the investigation in order for the material to be subject to the exemption. Nothing in the plain language of G L. c. 4, § 7(26)(f) contains such a limitation.” The Department indicates that based on the plain language of the statute and Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289 (1979), it need only demonstrate the probability that the disclosure of the records will be prejudicial to effective law enforcement. As such, the Department “. . . maintains there is a likelihood the premature disclosure of the investigatory materials would prejudice the possibility of effective law enforcement, the pending investigations concerning HLY’s management and organizational operations, and its potential violations of state and federal laws and regulations.” The Department explains that the “[d]isclosure of the Requested Records or other relevant material, may have a chilling effect on

Matthew Deacon SPR20/1472 Page 5 August 28, 2020 the cooperation of persons the investigators intended to interview. 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.” Additionally, the Department contends that “. . . public disclosure 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 Department indicates that once the investigation is complete it would produce responsive records subject to redactions. In camera inspection In order to facilitate a determination as to the applicability of the Department’s exemption claims to withhold records from disclosure in their entirety, the Department 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. 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.

Matthew Deacon SPR20/1472 Page 6 August 28, 2020 Order Accordingly, the Department is ordered to provide this Office with un-redacted copies of a representative sample of the responsive records for in camera inspection as soon as practicable. Sincerely, Rebecca S. Murray Supervisor of Records cc: Colman Herman