Colman Herman v. Soldiers' Home in Holyoke (SPR 20201879)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 19, 2020 SPR20/1879 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 “… [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.” Previous appeals This request was the subject of previous appeals. See SPR20/0870 Determination of the Supervisor of Records (June 12, 2020); SPR20/1159 Determination of the Supervisor of Records (July 27, 2020); SPR20/1509 Determination of the Supervisor of Records (September 11, 2020). Unsatisfied with the response, Mr. Herman appealed and SPR20/1879 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(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 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 SPR20/1879 Page 2 October 19, 2020 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). 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 September 29th response, the Home cited, G. L. c. 12A, §§ 9 and 13 which states 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. In its response, the Home stated, “[t]he Requested Records in any form including paper and electronic, are all within the scope of the investigative material requested by the OIG on April 21, 2020. Consequently, they are protected from disclosure by statute …”

Mark Yankopoulos SPR20/1879 Page 3 October 19, 2020 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 September 29th response, the Home stated that, “… [the] Home remains subject to several pending investigations, including those by the Massachusetts Office of the Attorney General (OAG), the Massachusetts Office of the Inspector General (OIG) and the United States Attorneys’ Office. The Requested Records relating to Walsh’s expenditures are clearly within the scope of the OIG’s investigation into the operation of [the] Home. To date no state agency, including [the] Home, has publicly disclosed the Requested Records. No action has been taken by any state agency that would negate the applicability of the exemption.” Based upon a conversation between a Public Records Division staff attorney and a Home representative, the Home confirmed that the responsive expense records are part of the OIG investigation. 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 investigation will affect the applicability of Exemption (f). Conclusion Accordingly, I will consider this administrative appeal closed. If Mr. Herman is not

Mark Yankopoulos SPR20/1879 Page 4 October 19, 2020 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