Alexander W. Dale v. Executive Office of Health and Human Services - Department of Public Health (SPR 20160933)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division

Shawn A, Williams Supervisor of Records

November 1, 2016 SPR16/933

Patricia Depew

Department of Public Health 99 Chauncy Street

Boston, MA 02111

Dear Ms. Depew:

I have received the petition of Alexander Dale appealing the response of the Department of Public Health (Department) to a request for public records, G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Mr. Dale requested a copy of the contingency plan submitted by Brigham and Women’s Hospital in preparation for a nurses’ strike. In a response dated August 19, 2016, the Department denied his request, claiming that the responsive records may be withheld under Exemption (n) of the Public Records Law. G. L. c. 4, § 7(26)(n).

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, § 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). 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.

If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(a); see also 950 C.M.R. 32.06(2) (where cost of complying with a request for public records is expected to exceed ten dollars ($10.00), custodian of records shall provide written good faith estimate). Once fees are paid, a records custodian must provide the responsive records.

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

Patricia Depew SPR16/933 Page 2 November 1, 2016

To assist in requesting and responding to requests for public records please refer to our publication, A Guide to the Massachusetts Public Records Law. This document is available on the Internet, free of charge, at http://www.sec.state.ma.us/pre/prepdf/guide.pdf. Attorneys on my staff are available during regular business hours to answer general questions regarding the Public Records Law. In addition, members of my staff will visit a records custodian in person to conduct training workshops on the Public Records Law upon request. Please contact my office directly at the telephone number provided in this determination for further information.

Exemption (n) The Department claims the responsive records may be withheld under Exemption (n). Exemption (n) applies to:

records, including, but not limited to, blueprints, plans, policies, procedures and schematic drawings, which relate to internal layout and structural elements, security measures, emergency preparedness, threat or vulnerability assessments, or any other records relating to the security or safety of persons or buildings, structures, facilities, utilities, transportation or other infrastructure located within the commonwealth, the disclosure of which, in the reasonable judgment of the record custodian, subject to review by the supervisor of public records under subsection (b) of section 10 of chapter 66, is likely to jeopardize public safety

G. L. c. 4, §7 (26)(n)

Exemption (n) allows for thé withholding of certain records which if released would undermine public safety. It is the duty of the custodian of records to exercise reasonable judgment to determine whether release of the record is likely to jeopardize public safety. Given the unique statutory construction of Exemption (n), records released to a particular individual through this exemption need not be released to all subsequent requestors.

You indicate “[t]o the extent that [the Department] possesses records responsive to your request” the Department has determined that they are exempt from disclosure. The Department must confirm whether it possesses responsive records, and if so, what types of records are responsive. See G. L. c. 4, § 7(26) (the duty to comply with requests for information extends to those records that exist and are in the custody of the custodian of records at the time of the request).

Further, the Department indicates “your requested records are exempt from public records disclosure pursuant to [E]xemption (n) as such documents reflect security measures, emergency preparedness and other records relating to security or safety of persons and the disclosure of which is likely to jeopardize public safety.” However, this response does not provide the required specificity with respect to the applicability of the exemption to the withheld records; specifically, it does not explain how disclosure of responsive records “is likely to

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jeopardize public safety” as required by Exemption (n). The response cites Exemption (n) without any further explanation as to the exemption’s applicability to the requested records.

As aresult, I find the Department has not met its burden under the Public Records Law with respect to a denial of access to records. See Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). I understand an attorney on my staff contacted you about this appeal.

Order

I find the Department has failed to respond to a public records request in compliance with the Public Records Law and its Access Regulations. Accordingly, the Department is hereby ordered to provide a revised, written response to Mr. Dale. A copy of any written response to Mr. Dale must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us.

It is important to note that this is not an order to produce records; I find the Department has failed to meet its statutory obligations regarding a description of the records and an explanation as to why any existing records are exempt.

kadwn A. Williams Supervisor of Records

cc: Mr. Alexander W. Dale