David S. Kassel v. Department of Public Health (SPR 20200744)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 21, 2020 SPR20/0744 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 David Kassel of the Massachusetts Coalition of Families and Advocates, Inc. appealing the response of the Department of Public Health (Department/DPH) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on April 16, 2020, Mr. Kassel requested 5 categories of records. This appeal pertains to items 2 and 4, requesting “[p]rojected timelines for testing all residents and/or staff in all nursing homes and other DPH long-term care facilities for COVID-19” and “[t]he total number of residents and staff in all nursing homes and other DPH long-term care facilities[,]” respectively. The Department provided a response on April 29, 2020, directing Mr. Kassel to its website. Unsatisfied with the Department’s response, Mr. Kassel petitioned this office and this appeal, SPR20/0744, 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. 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 SPR20/0744 Page 2 May 21, 2020 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. The Department’s April 29th response In its April 29, 2020 response, the Department indicates that it “. . . has created a link on the COVID-19 dashboard that provides the number of reported, confirmed COVID-19 cases each confirmed COVID-19 cases in long term care facility/nursing home” and provides a link to its website. In his appeal petition, Mr. Kassel states the following: [The Department] did not identify any records in response to my request, but instead directed me to a link to DPH website data on confirmed COVID-19 cases in long-term care facilities. In accessing that link, I could not find any data concerning projected timelines for testing all residents and/or staff in DPH facilities or the total number of residents and staff in those facilities. If DPH does not have these records, the response from Ms. Rush-Lloyd did not state that. As a result, I have to assume, DPH is denying my request for those records. Based on the foregoing, it is unclear whether the Department possesses responsive records. 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, § 10(a)(ii), (b)(ii); see also G. L. c. 66, § 10(b)(iv) (a 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 . . .”). As such, I find the Department must clarify whether it possesses records responsive to Mr. Kassel’s request. G. L. c. 66, § 6A(d) provides that “[i]f the public record requested is available on a public website pursuant to subsection (b) of section 19 of this chapter, section 14C of chapter 7 or any other appropriately indexed and searchable public website, the records access officer may furnish the public record by providing reasonable assistance in locating the requested record on the public website.” As such, whereas Mr. Kassel claims that the link provided by the Department did not enable him identify the data he is seeking, this office encourages the Department and Mr. Kassel to communicate further in order to enable access to responsive records. Conclusion Accordingly, the Department is ordered to provide Mr. Kassel with a response to the request, provided in a manner consistent with this order, the Public Records Law and its

Helen Rush-Lloyd SPR20/0744 Page 3 May 21, 2020 Regulations as soon as practicable. 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: David Kassel