Bill Shein v. Attorney General's Office (SPR 20252498)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 8, 2025 SPR25/2498 Hanne Rush, Esq. Assistant Attorney General Records Access Officer Office of the Attorney General One Ashburton Place, 20th Floor Boston, MA 02108 Dear Attorney Rush: I have received the petition of Bill Shein, of The Berkshire Argus, appealing the response of the Office of the Attorney General (AGO) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 19, 2025, Mr. Shein requested the following records: On or about July 30, 2025, Berkshire Health Systems reported a data breach to the U.S. Department of Health and Human Services’ Office for Civil Rights involving approximately 1,000 individuals. Under M.G.L. c. 93H, Berkshire Health Systems was also required to notify the Attorney General of this incident. I respectfully request: [1] The initial data breach notice filing submitted by Berkshire Health Systems to to the Attorney General regarding this incident; [2] Any amended or supplemental filings related to this incident; [3] Any cover letters or explanatory attachments submitted with the filing; [4] Any copies of Consumer Notice(s) that may have also been filed with the Office of Consumer Affairs and Business Regulation, considered under 93H as a factual regulatory filing; [5] Any and all segregable, factual information contained in the filing regarding the dates and nature of the breach, the number of Massachusetts residents affected, the categories of personal information or PHI involved, and the timeline of discovery and notice; and [6] Any correspondence between the Attorney General’s Office and Berkshire Health Systems (or their representatives) concerning this breach, including requests for clarification and responses. 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

Hanne Rush, Esq. SPR25/2498 Page 2 September 8, 2025 The AGO provided Mr. Shein with a response on August 21, 2025. Unsatisfied with the response, Mr. Shein petitioned this office and this appeal, SPR25/2498, was opened as a result. On September 8, 2025, the AGO provided a further response. The AGO’s August 21st and September 8th responses In its August 21, 2025 response, the AGO cited Exemption (f) of the Public Records Law to withhold the requested records. In its September 8, 2025 response, the AGO advised that it was “withholding the breach notification to the Attorney General’s Office and the supporting documentation under Exemption (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 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 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 289-90. The Supreme Judicial Court has stated that Exemption (f) aims at “the avoidance of premature disclosure of the Commonwealth’s case prior to trial, the prevention of the disclosure of confidential investigative techniques, procedures, or sources of information, the encouragement of individual citizens to come forward and speak freely with police concerning matters under investigation, and the creation of initiative that police officers might be completely candid in recording their observations, hypotheses and interim conclusions.” Bougas, 371 Mass. at 62; cited with approval in Reinstein, 378 Mass. at 289. To properly claim that Exemption (f) applies, a custodian must demonstrate that the disclosure of the records would have a prejudicial effect on its investigative efforts. This can be

Hanne Rush, Esq. SPR25/2498 Page 3 September 8, 2025 accomplished by describing how the records fall into one of three categories. These are the three categories that justify withholding records under Exemption (f):  The records reflect an ongoing investigation, such that any information relating to an ongoing investigation that could potentially alert suspects or targets to the activities of investigative officials;  The records reflect internal techniques, procedures, or sources, such that their disclosure would prejudice not only ongoing, but future law enforcement efforts; or  Disclosure of records would cause a chilling effect, because the exemption allows investigative officials to provide an assurance of confidentiality to individuals so that they will speak openly about matters under investigation. Such records in this third category include: any details in statements that directly or indirectly identify a private citizen who volunteers as a witness; an entire statement if the identity of witnesses is known to the requestor; and information voluntarily provided by an individual or entity to aid in the investigation. In its August 21st response, the AGO asserted, ...[The AGO is] withholding in their entirety records that may be responsive to your request in accordance with G.L. c. 4, § 7, cl. 26(f) as they constitute investigatory records under open review that is necessarily compiled out of the public view by law enforcement officials, the disclosure of which would so compromise effective law enforcement by prematurely releasing information about the nature of our review and/or cause a chilling effect on individuals/entities to speak freely with law enforcement that such disclosure would not be in the public interest. Based on the AGO’s August 21st response, I find that to the extent that the AGO claims that prematurely releasing information about the nature of its review may cause a chilling effect on individuals/entities to speak freely with law enforcement, the AGO may withhold the requested records under Exemption (f) of the Public Records Law at this time. Please note that a change in the status of the investigation could impact the applicability of Exemption (f). Conclusion Accordingly, I will consider this administrative appeal closed. Please be advised that this office shares jurisdiction with the Superior Court. See G. L. c. 66, § 10A(c).

Hanne Rush, Esq. SPR25/2498 Page 4 September 8, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Bill Shein