Andrea Estes v. Massachusetts Emergency Management Agency (SPR 20210985)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 3, 2021 SPR21/0985 Lord Spencer, Esq. General Counsel Massachusetts Emergency Management Agency 400 Worcester Road Framingham, MA 01702 Dear Attorney Spencer: I have received the petition of Andrea Estes of the Boston Globe appealing the response of the Massachusetts Emergency Management Agency (Agency) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 24, 2021, Ms. Estes requested “[a]ll correspondence, electronic or written, that references the Holyoke Soldier’s Home and or the National Guard during the period March 26-March 30, 2020.” This request was later narrowed on March 11, 2021. The Agency provided a response on April 13, 2021, which included responsive records. The Agency also withheld portions of the responsive records under Exemption (f) of the Public Records Law. G. L. c. 4, § 7(26)(f). Unsatisfied with the Agency’s response, Ms. Estes petitioned this office and this appeal, SPR21/0985, 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. 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

Lord Spencer, Esq. SPR21/0985 Page 2 May 3, 2021 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 Agency’s April 13th response In its April 13, 2021 response, the Agency indicates “[a]fter further review it has been determined that pages 13 and 21-40 of the requested records constitute material subject to G.L. c. 4, § 7, clause 26(f). . . .” The Agency outlines the investigations that are currently being conducted by the Massachusetts Office of the Attorney General, the Massachusetts Office of the Inspector General and the United States Attorneys’ Office. The Agency explains that “[t]hese pending investigations and ongoing criminal matters concern the operation, management, and oversight at the Holyoke Soldier’s Home in response to the COVID-19 pandemic. The records you have requested are within the scope of the pending investigations. It is the belief of the [Agency] that the disclosure of the records you have requested, at this time, would compromise the pending civil and criminal investigations and proceedings and, therefore, is not in the public interest. The investigatory material must be protected from disclosure at least until the conclusion of the three remaining investigations.” The Agency further 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 Agency “. . . maintains there is a likelihood the premature disclosure of the investigatory materials, including the records you have requested, would prejudice the possibility of effective law enforcement, including the pending investigations and criminal proceedings concerning the management and organizational operations of the Holyoke Soldier’s Home, and its potential violations of state and federal laws and regulations.” 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

Lord Spencer, Esq. SPR21/0985 Page 3 May 3, 2021 Mass 59, 62 (1976). Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Att’y Gen., 52 Mass. App. Ct. 244, 248 (2001); Reinstein, 378 Mass. at 290 n.18. 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 289-90. I find the Agency may permissibly withhold responsive records under Exemption (f) at this time. Please note, a change in the status of the investigations will affect the applicability of Exemption (f). See SPR20/1901 Determination of the Supervisor of Records (October 19, 2020); SPR20/1471 Determination of the Supervisor of Records (October 29, 2020); and SPR20/1472 Determination of the Supervisor of Records (October 29, 2020). Conclusion Accordingly, I will consider this administrative appeal closed. Sincerely, Rebecca S. Murray Supervisor of Records cc: Andrea Estes