Cody Shepard v. Department of Public Health (SPR 20192002)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray S11pe11•isor of Records October 16, 2019 SPR19/2002 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 Cody Shepard of The Brockton Enterprise appealing the response of the Department of Public Health (Department) to a request for public records. G. L. c. 66, § IOA; see also 950 C.M.R. 32.08(1). Specifically, on September 25, 2019, Mr. Shepard requested "[a] list of human cases of Eastern equine encephalitis virus infection in 2019, including the town each victim lives in and the date the [Depa1iment] was notified about each case." The Depaiiment provided a response denying access to responsive records. Unsatisfied with the Depaiiment's response, Mr. Shepard petitioned this office and this appeal, SPR19/2002, 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 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 SPR19/2002 Page 2 October 16, 2019 custodian must provide the responsive records. Tlte Department's response In its response, the Department stated that "[d ]ue to privacy restrictions, [it] can confirm cases only by county, age range, and month ofreport. ..." The Department also provided a link to a website where Mr. Shepard can view daily updates of the arbovirus. Burden of Specificity in claiming exemptioiis; segregable portions Pursuant to the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. 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 ... "); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The Department's response did not contain the specificity required in a denial of access to public records. Instead, the Depaiiment's response merely states that Mr. Shepard's request is denied "[d]ue to privacy restrictions ..." without any further explanation as to how the requested records are exempt from disclosure. The Department is not permitted to issue a blanket denial without providing any further information with respect to the requested records. Further, the Department withheld responsive records without claiming any exemption(s) in the Public Records Law that permits it to withhold records from disclosure. Consequently, I find the Department did not meet its burden of demonstrating how the requested records are exempt from disclosure. If the Department maintains the records are exempt from public disclosure, it must cite specific exemptions and the reasons the exemptions apply to withhold the responsive records. As a result, I find the Department did not meet its burden of explaining with specificity how the records, in their entirety, are exempt from disclosure. See Reinstein v. Police Comm'r of Boston, 3 78 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any nmi-exempt, segregable p01iion of a public record is subject to ·a. mandatory disclosure. L. c. 66, § lO(a). Conclusion Accordingly, the Department is ordered to provide Mr. Shepard with a response to the request, provided in a manner consistent with this 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.

Helen Rush-Lloyd SPR19/2002 Page 3 October 16, 2019 Sincerely, Rebecca S. Murray Supervisor of Records cc: Cody Shepard