D. Nathaniel Mulcahy v. Department of Public Health (SPR 20180915)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 5,2018 SPR1819 15 Helen Rush-Lloyd Department of Public Health 250 Washington St. Bridgewater, MA 02324 Dear Helen Rush-Lloyd: I have received correspondence from D. Nathaniel Mulcahy appealing the response of the Department of Public Health (Department) to a request for public records. G. L. c. 66, 5 lO(A); see also 950 C.M.R. 32.08(1). Specifically, on June 2,2018, Mr. Mulcahy requested the -- following items: 1. The number of homes and properties that had lead inspections conducted by DHPJCLPPP and affiliated community action agencies (such as but not limited to GLCAC) in the last fiscal year for the entire Massachusetts; 2. The number of times DPHJCLPP and affiliated community action agencies (such as but not limited to GLCAC) and legal groups affiliated with the lead-safe program such as, but not limited to, Cianciulli Law Office, in the last fiscal year, during the course of remediation filed charges or legal cases. This is to include, but not limited to all cases against property owners, historical commissions, conservation commissions or municipalities; 3. The total cost of all these cases filed by DHPICLPPP and affiliated community action agencies (such as but not limited to GLCAC) during the last fiscal year. Unsatisfied with the response of the Department, Mr. Mulcahy petitioned this office and as a result SPR1819 15 was opened. 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, 5 10A(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, 5 7(26). One Ashburton Place, Room 1719, Boston, Massach- usetts 02108 (617) 727-2832- Fax: (617) 727-5914 sec.state.ma.us/pre pre@sec.state.ma.us

Helen Rush-Lloyd Page 2 July 5,2018 June 2tlz Letter In reference to item #1 in his letter dated June 2, 2018, Mr. Mulcahy writes, "Ms. Wagner replied '288' but it would seem odd that with so many staff and so many affiliated community action groups helping them with their task that DPHICLPPP in a state with 2,443,580 households would have inspected so few homes." He then adds, "I, therefore, ask for verifications of Ms. Wagner's reply." Item 2 is a matter of similar issue as Mr. Mulcahy also sought verification of Ms. Wagner's reply. In the June 2ndl etter he states, "given the small number provided as an answer to 1 (above), we would like the number offered in reply to this question (84) to also be verified." Under the Public Records Law, the Department is not required to create a record in response to a public records request. G. L. c. 66, 5 6A(d). 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. See G. L. c. 66, 5 lO(a)(ii). Please be advised, should he wish, Mr. Mulcahy may submit a separate request to the Department to obtain potential underlying records. In the matter of item #3, Mr. Mulcahy states, "[tlo this date we have been offered two replies: the first was 'We do not have the information you requested in #3.' To this I requested to at least to know who the record keeper for this information is." In its response dated June 19, 201 8, the Department expressed to Mr. Mulcahy that it does not track this information. In the June 19 thl etter the Department writes, "CLPPP lead inspectors perform both enforcement and non-enforcement duties and CLPPP does not track their time on each activity, CLPPP lead inspector salaries are available on Open Checkbook, which can be accessed." The Department then provided Mr. Mulcahy a link to access the salaries. Conclusion Whereas the Department provided Mr. Mulcahy records responsive to item #I and item #2 and has no duty to create records responsive to item #3, I will now consider this administrative appeal closed. Sincerely, V Rebecca S. Murray Supervisor of Records cc: D. Nathaniel Mulcahy Carolyn C. Wagner