Matthew Rocheleau v. Boston Public Health Commission (SPR 20200714)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 11, 2020 SPR20/0714 Batool Raza, Esq. Assistant General Counsel Office of the General Counsel Boston Public Health Commission 1010 Massachusetts Avenue Boston, MA 02118 Dear Attorney Raza: I have received the petition of Matthew Rocheleau of the Boston Globe appealing the response of the Boston Public Health Commission (Commission) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on March 30, 2020, Mr. Rocheleau requested 5 categories of records related to COVID-19. This appeal pertains to the following portions of the request: “1. Any/all text messages, and/or voicemails sent and/or received by each of the following individuals from March 21, 2020 through March 30, 2020: o Rita Nieves (Interim Executive Director) o Heather Gasper (Director of Intergovernmental Relations) o Stacey Kokaram (Director, Office of Public Health Preparedness) o Mea E. Allen (Associate Director, Education and Training) o Michael Colanti (Associate Director, Planning and Operations) o Amanda Wolfe (Emergency Preparedness Educator) 2. Any/all emails sent and/or received from March 21, 2020 through March 30, 2020 by each of the following individuals: o Rita Nieves (Interim Executive Director) o Heather Gasper (Director of Intergovernmental Relations) o Stacey Kokaram (Director, Office of Public Health Preparedness) o Mea E. Allen (Associate Director, Education and Training) o Michael Colanti (Associate Director, Planning and Operations) o Amanda Wolfe (Emergency Preparedness Educator) 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

Batool Raza, Esq. SPR20/0714 Page 2 May 11, 2020 Provided that the messages contain any of the following terms: o Corona o Coro[]navirus o COVID-19 o COVID o Wuhan o Epidemic o Pandem[]ic o Outbreak o Quarantine o Biogen 3.) Any/all records posted/submitted to any/all WebEOC incident(s) called ‘COVID- 19’ (formerly known as ‘2019-nCoV’) on the City of Boston’s WebEOC, including but not limited to any/all Health Unit Logs, any/all MIC SitBriefs, any/all public health guidance, any/all MIC 213RR - Resource Request Forms, any/all OPEM 213RR Forms, and any/all records in the Incident File Library. 4.) Any/all Rapid Hospital Capacity Assessments completed during March 2020, including but not limited to one issued on about March 15, 2020 and one issued/added to on/about March 19, 2020.” On April 13, 2020, the Commission responded requesting additional time to respond. Mr. Rocheleau petitioned this office and this appeal, SPR20/0714, 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, § 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, § 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, § 10(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, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records.

Batool Raza, Esq. SPR20/0714 Page 3 May 11, 2020 The Commission’s April 13th response In its April 13th response, the Commission indicates that it “. . . estimates that it will require 15 additional business days for review and production of the requested records, as provided under 950 CMR 32.06(2)(i).” In his appeal petition, Mr. Rocheleau states the following: This request was substantially similar to a March 10, 2020 request I made, but sought records from different date ranges. In response to an appeal of that March 10, 2020 request, the Supervisor’s office on April 28, 2020 ordered the Department to turn over the responsive records to you for in camera review. (see: SPR20/0667) Because we are not confident that the Department will respond to the results of your in camera review by producing all records responsive to my other request that are similar to those that you determine are not exempt in connection with SPR20/0667, I respectfully ask that you similarly order the Department to provide you with the records responsive to my March 30, 2020 request for in camera review. Subsequent to the opening of this appeal, I learned that on May 11, 2020, the Commission provided Mr. Rocheleau with a supplemental response which included responsive records pertaining to this request. Conclusion Accordingly, I will now consider this administrative appeal closed. Mr. Rocheleau may appeal the substantive nature of the Commission’s response within ninety calendar days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Matthew Rocheleau