Greg Hard v. Department of Public Health (SPR 20192262)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 21, 2019 ·S PR19/2262 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 Greg Hard appealing the response of the Department of Public Health (Department) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Hard initially requested the following records: 1) The number of all confirmed vape related respiratory illnesses discovered by DPH in the past 60 days. DPH can define 'confirmed' as per their SOP. 2) The number of illnesses repmiing THC vape use, nicotine vape use, or combined THC/nicotine vape use 3) The number of THC-related illnesses related to vape cartridges purchased at Regulated Marijuana Dispensaries 4) The number of THC-related illnesses related to vape cmiridges purchased illegally (black market) 5) All internal memos or other relevant communications relating to THC-related vape Illnesses with appropriate redactions 6) Documents containing statistical data on vape related illnesses used to inform such policy, including but not limited to the Governor's Executive Order dated September 24 2019. On September 26, 2019, Mr. Hard narrowed his request in a telephone conversation to "vaping related lung disease reports received by the depmiment." On September 27, 2019, Mr. Hard made another public records request seeking " ... data suggesting that people are getting sick from Juul products ...." 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 SPR19/2262 Page 2 November 21, 2019 Previous appeal This request was the subject of a previous appeal. See SPRl 9/2083 Determination of the Supervisor of Records (October 23, 2019). In my October 23rd determination I ordered the Department to provide Mr. Hard with a response to the request, provided in a manner consistent with the order, the Public Records Law and its Regulations. The Department responded on November 6, 2019. Mr. Hard appealed and SPR19/2262 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, § lO(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. Current appeal The Department initially responded on October 9, 2019 by denying access to responsive records pursuant to Exemptions (a), (c), (d), and (f) of the Public Records Law. G. L. c. 4, § 7(26)(a), (c), (d), (f). In my October 23rd determination I found that to the extent that records contain medical information related to an identifiable individual, the Department may withhold such portions from the responsive records. However, I also found it was unclear why the Department cannot provide segregable portions of responsive records. I encouraged Mr. Hard and the Department to continue to communicate to facilitate providing records more efficiently and affordably. In the Department's November 6th response you indicate" ... the Department contacted [Mr. Hard] on November 4, 2019 to advise that in the time since [his] original requests were made, the Depaiiment has created public reports on its investigation into vaping associated pulmonary disease (now described by the federal Centers for Disease Control and Prevention (CDC) as e-cigarette or vaping product use-associated lung injury or EV ALI), available here ... ." You also note that "[t]hese reports are updated weekly and give numbers of the confirmed and probable EV ALI cases the Department has reported to the CDC, as well as summary or aggregate information concerning those confirmed and probable cases."

Helen Rush-Lloyd SPR19/2262 Page 3 November 21, 2019 The Depaiiment further notes "[o]n November 6, 2019, [Mr. Hard] responded to the Department and indicated [he] would like to receive information additional to the online report. [He] requested 'the case reports with minimally necessary redactions for confirmed and probable cases.' The Department will respond to this new request under separate cover." In his appeal petition Mr. Hard assyrts "[t]he response issued by the Department on November 6th did not address any of the concerns outlined by our organization in our appeal, or by the RAO in the determination notice." He indicates that that the link to the portal provided by the Department is an inadequate response and explains "[s]ince the portal does not contain the product source information, we referred back to our original request as modified on the phone previously with Attorney Squillace. This request was for the case reports, presuming that those are the only place where we'd find rep01iing on product sources." Based upon a review of the file, it appears Mr. Hard now seeks certain case reports. Based on its November 6th response, I understand the Department will provide a separate response to this request. The Department must provide said response in a manner consistent with G. L. c. 66, § lO(a)-(b) as well as my October 23rd determination described above. Please be advised that any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § lO(a). Mr. Hard may appeal the substantive nature of the Department's response within ninety days. See 950 C.M.R. 32.08(1). This office continues to encourage Mr. Hard and the Department to continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § lO(b)(vii) (an agency shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency to produce records sought more efficiently and affordably). Conclusion Accordingly, the Department must provide a response to Mr. Hard 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, ~~ Supervisor of Records cc: Greg Hard