Betty Friendly v. Department of Public Health (SPR 20191145)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords June 18, 2019 SPR19/1145 Helen Rush-Lloyd Records Access Officer Massachusetts Department of Public Health 250 Washington Street Boston, MA 02108 Dear Ms. Rush-Lloyd: I have received the petition from a requestor appealing the response of the Massachusetts 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). The requestor sent a request to the Department seeking copies of waivers. The Department provided a response to the requestor on June 4, 2019. The requestor appealed the Department's response to this office. Appeal Under the Public Records Law and the Access Regulations (Regulations) all requests for public records must be met with a response within ten business days ofreceipt of the request. G. L. c. 66, § lO(a)-(b). The response may contain, among other things, an offer to provide records, a fee estimate for provision of the records, or a denial. G. L. c. 66, § lO(b). All records custodians must comply with both the Public Records Law and the Regulations with respect to the timeliness of response. 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 ofrecords at the time of the request. See G. L. c. 66, § lO(a)(ii), (b)(ii). Also, the duty to comply with requests for records extends to identifying the agency or municipality that may be in possession, custody, or control of the public record sought, if known. See G. L. c. 66, § lO(b)(iii). 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, § lO(b)(iv) (written response must "identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based ... "); 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). 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

Ms. Helen Rush-Lloyd SPR19/1145 Pg.2 June 18, 2019 111 The Department in their June 4 response stated that "[a]fter a comprehensive search, DPH has not identified any records in its custody and control which are responsive to your request." It is unclear if the Department possesses any records responsive to the requestor' s request. See G. L. c. 66, § 1O (a)(ii), (b )(ii), (iii). Specifically, the Department must explain whether the requested waivers existed and were destroyed, or whether the records did not initially exist. See G. L. c. 66, § lO(a)(ii), (b)(ii). If such records were destroyed, the Department must demonstrate whether it followed proper records retention protocol. Conclusion Accordingly, the Department is ordered to provide the requestor with a response provided in a manner consistent with this order, the Public Records Law, and its Regulations within 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Requestor