Chris Peak v. Department of Public Health (SPR 20200820)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 2, 2020 SPR20/0820 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 Christopher Peak of American Public Media (APM) Reports appealing the response of the Department of Public Health (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Peak requested: “a copy of [anonymous] data on coronavirus cases and fatalities retained by the [Department]. In particular, I am seeking data on confirmed and suspected COVID-19 cases and fatalities at each hospital. Ideally, I would prefer to obtain a dataset that tracks each hospitalized coronavirus patient individually, with whatever other demographic information is releasable. But if not, aggregate statistics for each hospital will work. I would also prefer cumulative totals. But if not, the daily totals since the start of this pandemic will work.” In addition, Mr. Peak seeks to receive these records in their native, electronic format, preferably as a machine-readable spreadsheet, and asks the Department to waive all applicable fees. The Department provided a May 7, 2020 response indicating the Department does not possess records “in its custody and control which are responsive to [Mr. Peak’s] request. Hospitals do not report data on individual patients who have been hospitalized to the Department. The Department does provide aggregate information on COVID-19 dashboard.” The Department provided a link to the most recent chart at: https://www.mass.gov/info- details/covid-19-cases-quarantine-and-monitoring. 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 SPR20/0820 Page 2 June 2, 2020 As a result of the May 7th response, Mr. Peak petitioned the Supervisor of Records (Supervisor), and this appeal was opened. In his petition, Mr. Peak explains that the Department seems to have construed his request too narrowly. He states, “…facility-level data would give more information about where patients are showing up and where they are dying than the limited information [the Department] publishes online.” Mr. Peak contends that the Department does retain the information he requested and that the Department has been gathering those numbers from hospitals and then reprinting a part of it in the COVID-19 dashboard. He asserts, “[s]ince April 19, it has included the number of suspected and confirmed COVID patients in each hospital’s ICU rooms and other beds as part of a census. The full data set since early March, including any data on the number of fatalities at each facility over that time, should be promptly released.” 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) (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). 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. A Senior Attorney in the Public Records Division contacted you by email, and you indicated that the Department will provide a further response to address the issues communicated by Mr. Peak in his petition to the Supervisor. Conclusion Accordingly, the Department is ordered to provide Mr. Peak with a response to the request, in a manner consistent with this order, the Public Records Law and its 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.

Helen Rush-Lloyd SPR20/0820 Page 3 June 2, 2020 Sincerely, Rebecca S. Murray Supervisor of Records cc: Christopher Peak, APM Reports