Herman, Colman v. Department of Public Health - Division of Health Care Facility Licensure and Recertification (SPR 20140508)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords October 16, 2014 SPR14/508 Mr. David Kibbe Department of Public Health 250 Washington Street Boston, MA 02108 Dear Mr. Kibbe: I have received the petition of Colman M. Herman appealing the response of the Department of Public Health (Department) to his June 27, 2014 request for public records. G. L. c. 66 § lO(b); see also 950 C.M.R. 32.08(2). Specifically, Mr. Herman requested copies of expense reports for Commissioner Cheryl Bartlett for the period of January 1, 2013 through the request date. Mr. Herman also requested copies of credit card statements for expenses incurred by Commissioner Bartlett during the same time period. It is my understanding that Mr. Herman received an acknowledgement of his request in a July 14,2014 correspondence from you. Please be advised that a request for public records must be met with a written response within ten (1 0) calendar days ofthe request. See G. L. c. 66, § 10(b); 950 C.M.R. 32.05. With its delayed response, the Department failed to satisfy its burden with respect to the timeliness requirement of the Public Records Law. It is also my understanding that the Department has provided Mr. Herman with no further information regarding his request, other than an August 11, 2014 communication from you in which you stated that the Department is "still actively working on the request." The Department has further failed to satisfy the burden a records custodian holds when responding to a request for records. 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 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). OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Mr. David Kibbe SPR14/508 Page Two October 16, 2014 The Department has effectively denied Mr. Herman's request for records by failing to provide a substantive or meaningful response to his request, a request that was made over ninety (90) days ago. The Department has provided no specificity with respect to the applicability of an exemption claim that may justify its non-disclosure of the requested records. Accordingly, the Department is hereby ordered to provide Mr. Herman with copies of all responsive records within ten (1 0) calendar days. If the Department asserts that responsive records are exempt from disclosure, it may within thirty (30) days, provide to Mr. Herman and this office an explanation, with specificity, that will satisfy its burden in withholding records responsive to this request. An acknowledgement will be provided within fifteen (15) days, followed by a written determination from this office. Requests for reconsideration fil d ore than thirty (30) days after the date of this letter will not be considered. This adm· is ve appeal is now closed. Shawn A. Williams Supervisor of Records cc: Mr. Colman M. Herman