Joe Difazio v. Department of Public Health (SPR 20200874)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 12, 2020 SPR20/0874 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 Joseph DiFazio of The Patriot Ledger 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. DiFazio requested: “[a]ny records, including electronic communication, regarding the number of cases of COVID-19 at long-term care facilities in the state, and [a]ny records, including electronic communication, regarding the number of deaths due to COVID-19 at long-term care facilities.” Prior appeal The requested records were the subject of a prior appeal. See SPR20/0843 Determination of the Supervisor of Records (Supervisor) (June 1, 2020). Given that appeal SPR20/0843 was opened as a result of Mr. DiFazio not receiving a response to his request, I closed this prior appeal when the Department provided a response. After receipt of the responsive records from the Department, Mr. DiFazio petitioned the Supervisor indicating that he did not receive a “specific accounting of cases, separated by resident and staff.” As a result, the current appeal was opened. 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). 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 Ruth-Lloyd SPR20/0874 Page 2 June 12, 2020 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). Burden of specificity in responding Pursuant to the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption when withholding records. G. L. c. 66, § 10(b)(iv); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. - - - - - at 511. Upon review of Mr. DiFazio’s petition, it is unclear whether the Department is in possession of a specific accounting of Covid-19 cases separated by resident and staff. The Department is aware of this appeal, and has indicated that a response will be sent to Mr. DiFazio addressing the issues raised in the appeal. Conclusion Accordingly, the Department is ordered to provide Mr. DiFazio with a response to the request, provided in a manner consistent with 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Joseph DiFazio, The Patriot Ledger