Brian Steward v. Executive Office of Health and Human Services - Department of Public Health (SPR 20170177)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 17, 2017 SPR17/177 Helen Rush-Lloyd Records Access Officer Department of Public Health 250 Washington Street Boston, MA 02108 Dear Ms. Rush-Lloyd: I have received the petition of Brian Steward appealing the response of the Executive Office of Health and Human Services -Department of Public Health (DPH) to a request for public records. G. L. c. 66 § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Steward requested a copy of all outside consultant reviews and reports from July 1, 2013 to present on the operation of the Bureau of Healthcare Safety and Quality and the Office of Emergency Medical Services, including those produced by Ripples and John Snow International. DPH provided Mr. Steward with responsive records in December 2016 and on January 31, 2017 waiving all applicable fees allowed by the Public Records Law Access Regulations. 950 C.M.R. 32.06(1), (5) (2016 ed.). In its January 31st response, DPH stated it is withholding the records from Ripples and John Snow International pursuant to Exemption (d) of the Public Records Law. Mr. Steward appealed. The Public Records Law I note that the request for the responsive records was made prior to the new provisions of the Public Records Law (Law) that went into effect on January 1, 2017. Therefore, the prior Law's provisions and regulations apply to this request and appeal. The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § lO(c) (2016 ed.); 950 C.M.R. 32.08(4) (2016 ed.). "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 ) (2016 ed.); see also District Attorney 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

Helen Rush-Lloyd SPRl 7/177 Page 2 February 17, 2017 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, § lO(a) (2016 ed.); see also 950 C.M.R. 32.06(2) (2016 ed.) (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. Exemption (d) DPH is claiming Exemption (d) to withhold the records because the documents reflect on-going policy positions being developed regarding the operation of the Office of Emergency Medical Services. Exemption (d) applies to: inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this sub-clause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based G. L. C. 4, § 7 (26)( d) Exemption ( d) is intended to avoid premature release of materials that could taint the deliberative process if disclosed. Its application is limited to recommendations on legal and policy matters found within an ongoing deliberative process. Babets v. Secretary of the Executive Office of Human Services, 403 Mass. 230,237 n.8 (1988). Factual reports which are reasonably complete and inferences which can be drawn from factual investigations, even if labeled as opinions or conclusions, are not exempt as deliberative or policy making materials. G. L. c. 4, § 7(26)(d); see also Environmental Protection Agency v. Mink, 410 U.S. 73, 89 (1973) (Purely factual matters used in the development of government policy are always subject to disclosure.) A review of the January 31st response reveals that DPH did not meet its obligation of providing the requisite level of specificity to withhold the records pursuant to Exemption ( d) of the Public Records Law. DPH does not explain policy positions these reports are related to, nor does it explain how their public disclosure would taint the deliberative process. The response merely states that the responsive documents "reflect on-going policy positions being developed by DPH regarding operation of the Office of Emergency Medical Services." The statutory exemptions are narrowly construed and are not blanket in nature. See Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § lO(a) (2016 ed). DPH is reminded that "reasonably completed factual studies or reports on which the

Helen Rush-Lloyd SPRl 7/177 Page 3 February 17, 2017 development of such policy positions has been or may be based" should not be withheld. G. L. c. 4, §7 (26)(d). After you contacted this office on February 10th, an attorney on my staff provided you with a copy of the appeal file to assist DPH with this appeal. She followed up with a voicemail message explaining that DPH should provide Mr. Steward with a more detailed response ih, concerning its Exemption (d) claim to withhold the records. On February 1 you informed my staff attorney that DPH will provide Mr. Steward with a supplemental response. Conclusion Accordingly, whereas DPH has promised to provide a supplemental response concerning its Exemption ( d) claim, I will consider this appeal closed with the proviso that DPH provides Mr. Steward with the response in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) business days. A copy of any such response 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. Mr. Steward may appeal the substantive nature of the response within ninety (90) days. 950 C.M.R. 32.08(1 ). Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Brian Steward