Saklad, Don Kempner Warner v. Department of Public Health - Lemuel Shattuck Hospital (SPR 20150224)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords May 19,2015 SPRlS/224 Mr. Paul Romary Department of Public Health Lemuel Shattuck Hospital 170 Morton Street Jamaica Plain, MA 02130 Dear Mr. Romary: I have received the petition of Donald Saklad appealing the response of the Lemuel Shattuck Hospital (Hospital) to his request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically Mr. Saklad requested copies of annual report records as well as reports to "quality review authorities." In your response you explained that while "its financials are public information," the Hospital "does not produce an annual report." Further, you stated that "state agencies are sent various quality reports, some ofwhich is incident-specific and some of which is compiled in summary form." You denied Mr. Saklad's request for this information, failing to cite an exemption to the Public Records Law. In denying access you explained that you are "not able to release quality review data because it is confidential under medical peer review protections." You did offer to assist Mr. Saklad should there be "another way" you could satisfy his requests. The duty to comply with requests for information extends only to those records that exist and are in the custody of the custodian of records at the time ofthe request. See G. L. c. 4, § 7(26) (defining "custodian" as the public employee with routine access to or control of public records). There is no obligation to create a record in response to a request for public records. See G. L. c. 66, § 10(a); 32 Op. Atty Gen. 157, 165 (May 18, 1977) (custodian is not obliged to create a record in response to a request for information). Whereas there are no annual reports to produce, and further whereas you agreed to assist Mr. Saklad in obtaining responsive information from existing sources, this portion of his appeal is closed. With regards to Request 2 you explained that as a state-funded facility, the Hospital's financials are public information but there is no single documentary source that reviews all revenues, expenditures and other accounting data based on GASB or GAAP principals. You provided no explanation nor claimed any specific exemption to the Public Records Law for denying access to what records do exist responsive to this portion of the request. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832. Fax (617) 727-5914 www.sec.state.ma. us/ pre

Mr. Paul Romary SPR15/224 Page Two May 19,2015 With regards to Mr. Saklad's request for quality reports, you failed to claim any specific exemption. The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10(c); 950 C.M.R. 32.08(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 ( c); see also District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). 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 response by the Hospital did not contain the specificity required in a denial of access to public records. Accordingly, the Hospital is advised that to comply with the Public Records Law and Regulations it must provide specificity with respect to any denial of access to public records. This requires a records custodian to not only cite an exemption, but to specifically explain the applicability of the exemption to the requested records. I find the Hospital has failed to rebut any presumption that the requested records are public records. The Hospital was provided with not only Mr. Saklad's request, but also an acknowledgment from this office dated April 15, 2015 providing an appeal number and notice that a public records appeal had been opened by this office. These notices provided ample opportunity for the Hospital to endeavor to meet its burdens of specificity under the Public Records Law in denying access to records. Accordingly, whereas the Hospital has failed to satisfy its mandatory burdens of specificity, the Hospital is hereby ordered, within ten (1 0) days, to review the requests made by Mr. Saklad and provide a written response, made in accordance with the Public Records Law, its Access Regulations and this order. This administrative appeal is now closed. Supervisor of Records cc: Mr. Donald Saklad