Jamie Peterson v. Executive Office of Health and Human Services - Department of Public Health (SPR 20171284)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 25, 2017 SPR17/1284 Helen Rush-Lloyd Executive Office of Health and Human Services Department of Public Health 250 Washington Street Boston, MA 02108 Dear Ms. Rush-Llyod: I have received the petition of Jamie Peterson appealing the response of the Department of Public Health (Department) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on August 30, 2017, Ms. Peterson requested "licensing applications, reapplications and all complaints pertaining to" an identified individual. On September 12, 2017, the Department provided a response in which it provided some records and claimed it could not locate a portion of the request. Unsatisfied with the Department's response, Ms. Peterson petitioned this Office and this appeal, SPR17/1284, was opened as a result. 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, § lOA( d); 950 C.M.R. 32.03(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, § 1O (b )(iv); 950 C.M.R. 32.06(3); see also Dist. 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, § 1O (b )(viii); see also 950 C.M.R. 32.07(2). 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

Helen Rush-Lloyd SPR1711284 Page 2 September 25, 20 17 The Department's September Ji11 Response In the Department's September 1i11 response, it indicated that "[e]nclosed are records responsive to your request, the production of which completes DPH's response to your request. DPH has not withheld or re.dacted any documents from this response. After a comprehensive search, including contacting the State Records Center, we could not locate_ [the] license application from 1981. This licensee has no complaints." In a telephone conversation with the Department, the Department explained that it is conducting another search to see if it could locate the record but it believes the record may have been destroyed. Whereas the duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request, if the Department maintains that the responsive record no longer exist, it must explain in writing its justification under the Public Records Law and the Massachusetts Statewide Records Retention Manual for destroying the record. See G. L. c. 66, § 10 ( a)(i). I understand a Public Records Division staff attorney contacted your office about this appeal. Order Accordingly, whereas the Department has indicated that it will provide a supplemental response to Ms. Peterson, I will consider this administrative appeal closed with the proviso that the Department provide said response in a manner consistent with t~is order, the Public Records Law and its Regulations within ten 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Jamie Peterson