Colman M. Herman v. Department of Public Health (SPR 20201901)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 19, 2020 SPR20/1901 Helen Rush-Lloyd Records Access Officer Department of Public Health 250 Washington Street Boston, MA 02108 Dear Ms. Rush-Lloyd: I have received the petition of Colman Herman appealing the response of the Department of Public Health (Department/DPH) 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 Public Health. Previous appeals The requested records were the subject of previous appeals. See SPR20/0685 Determination of the Supervisor of Records (May 5, 2020); SPR20/0845 Determination of the Supervisor of Records (June 9, 2020); and SPR20/1228 Determination of the Supervisor of Records (August 4, 2020). In my August 4th determination, I found the Department had not met its burden to withhold responsive records under Exemptions (a) and (f) of the Public Records Law. Subsequently, the Department provided a supplemental response on October 2, 2020, 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

Helen Rush-Lloyd SPR20/1901 Page 2 October 19, 2020 which provided additional information regarding its exemption claims. Unsatisfied with the Department’s response, Mr. Herman petitioned this office and this appeal, SPR20/1901, 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 Department’s October 2nd response In its October 2, 2020 response, the Department 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 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

Helen Rush-Lloyd SPR20/1901 Page 3 October 19, 2020 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 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 Department 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 Department 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 April 23, 2020 and May 19, 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 Department has met its burden to withhold responsive records under Exemption (f). Therefore, I will not opine on the Department’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).

Helen Rush-Lloyd SPR20/1901 Page 4 October 19, 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