Colman Herman v. Soldiers' Home in Holyoke (SPR 20201510)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 14, 2020 SPR20/1510 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 appeals The requested records were the subject of previous appeals. See SPR20/0904 Determination of the Supervisor of Records (June 22, 2020) and SPR20/1083 Determination of the Supervisor of Records (July 17, 2020). In my July 17th determination, I found that the Home had not met its burden to withhold responsive records, in their entirety, under Exemption (f). I also directed the Home to identify records in its possession. In the alternative, I offered the Home 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. SPR20/1510 Page 2 September 14, 2020 the opportunity to submit a representative sample of the records for in camera inspection by this office so that a final determination could be rendered on the exemption claim. The Home chose to provide a response on August 27, 2020. Unsatisfied with the Home’s response, Mr. Herman petitioned this office and this appeal, SPR20/1510, 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 August 27th response In its August 27, 2020 response, the Home reiterates that the records are exempt from disclosure pursuant to Exemptions (a) and (f) of the Public Records Law. 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

Mark Yankopoulos, Esq. SPR20/1510 Page 3 September 14, 2020 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 Home posits that where Superintendent Walsh released some communications without the involvement of or authorization of the Commonwealth, “[t]he unauthorized release of investigative material does not negate the applicability of the investigatory exemption. . . . [T]o date, no state agency has publicly disclosed the Requested Records. . . . Moreover, Attorney Pearlstein’s report did not include the Requested Records or any supporting documentation; thus, maintaining the protections afforded to the Requested Records while the other investigations are pending.” The Home explains that “[t]he investigatory exemption . . . is analogous to the protections provided to attorney-client communications and to trade secrets. In the case of attorney-client communications, provided adequate measures have been taken to safeguard the substance of the communications, disclosure of the communications by a third party does not constitute waiver of the privilege. In the Matter of the Reorganization of Electric Mutual Liability Insurance Company, Ltd. (Bermuda), 425 Mass. 419, 421-23 (1997). In the event the communications are disclosed, the law provides a remedy for the injured party. Patel v. Martin, 481 Mass. 29, 36-37 (2018). In the case of trade secrets, provided adequate measures have been taken to safeguard the information, the law treats it as a secret. The disclosure by a third party does not alter the protection provided to the trade secret, but instead triggers penalties against the discloser. Jet Spray Cooler, Inc. v. Crampton, 361 Mass. 835, 839-841 (1972).” The Home further states that “. . . the communications released by Superintendent Walsh are protected by the investigatory exemption. That he released them without authorization does not alter the applicability of the protection. The response to an unauthorized release of attorney- client communications or trade secrets is not to exacerbate the harm by requiring further disclosure. Rather, it is the disclosing party who is penalized. The protections against public disclosure remain intact to prevent any further damage. For the reasons stated above, and for the reasons set out in detail in the responses of June 1, 2020 and July 1, 2020, which are herein incorporated by reference in their entirety, the Requested Records remain protected from public disclosure by the investigatory exemption, notwithstanding the unauthorized release of certain protected investigatory material.” I find the Home has met its burden to withhold responsive records under Exemption (f). Therefore, I will not opine on the Home’s Exemption (a) claim supporting nondisclosure of the requested records. Please note, a change in the status of the investigations will affect the applicability of Exemption (f).

Mark Yankopoulos, Esq. SPR20/1510 Page 4 September 14, 2020 Conclusion Accordingly, I will consider this administrative appeal closed. If Mr. Herman is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, §10(b) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Rebecca S. Murray Supervisor of Records cc: Colman Herman