Russell, Gerard v. Department of Public Health - Division of Health Care Facility Licensure and Recertification (SPR 20140228)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supetvisor ofR ecords May 6, 2014 SPR14/228 Mr. Gerard F. Russell Worcester Telegram & Gazette 10 0 Front Street P.O. Box 15012 Worcester, MA 01615-0012 Dear Mr. Russell: This office has received your petition appealing the response of the Department of Public Health (Department) to your March 20, 2014 request for public records. See G. L. c. 66, § 10(b); see also 950 C.M.R. 32.08(6). Specifically, you requested records relating to the dispensing of prescription drugs. In an April 2, 2014 email to you from Media Relations Manager Anne Roach, the Department stated that responsive records were being withheld from disclosure pursuant to Department regulation 105 C.M.R. 700.012. Although the Department's response cited a legal authority for withholding the requested records, it failed to directly identify the specific exemption under which these records have been withheld. The Public Records Law states that "the burden shall be upon the custodian to prove with specificity the exemption which applies." G. L. c. 66, § 10(c) (emphasis added). See also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); see also District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995). The Department is reminded that it is required to both identify an exemption and provide specificity with respect to its applicability when withholding records in response to a request. Exemption (a) The Department did not directly identify an exemption in withholding responsive records, but it did implicate Exemption (a) of the Public Records Law in citing its regulation as the authority which permits it to withhold these records. Exemption (a) allows for the withholding of records which are: One Ashburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Mr. Gerard F. Russell SPR14/228 Page Two May 6, 2014 specifically or by necessary implication exempted from disclosure by statute G.L. c. 4, § 7(26)(a) A governmental entity may use Exemption (a) as a basis for withholding requested materials where the language of the exempting statute suggests that the public's right to inspect records under the Public Records Law is restricted. Attorney General v. Collector of Lynn, 377 Mass. 151, 154 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). In its response, the Department stated that responsive records have been withheld pursuant to 105 C.M.R. 700.012. Section (D) of the regulation states in part: "Except where otherwise provided by judicial order, statute or regulation ... the information collected pursuant to 105 CMR 700.012 shall be kept confidential by the Department." In order to provide the specificity required of a records custodian when responding to a public records request, the Department should have specifically cited this section of the regulation in its response, which it failed to do in this instance. Although the Department failed in part to satisfy its burden in responding to your request, the Department did cite an authority for withholding responsive records that I find to be permissible with respect to your records request. The Department's regulation expressly permits the non-disclosure of the type of information you have requested, except in limited circumstances. Accordingly, it is my finding that the Department may permissibly withhold records responsive to your request pursuant to Exemption (a) of the Public Records Law. To assist the Department in responding to subsequent public records requests, this office has enclosed a copy of the publication A Guide to Massachusetts Public Records Law with this letter. Accordingly, this administrative appeal is closed. Shawn A. Williams Supervisor of Records Enclosure cc: Ms. Anne Roach