Cristina Freitas, Esq. v. Executive Office of Health & Human Services (SPR 20201052)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 14, 2020 SPR20/1052 Alexander D. deBlieck Public Records Paralegal Executive Office of Health and Human Services One Ashburton Place, Room 1109 Boston, MA 02108 Dear Mr. deBlieck: I have received the petition of Cristina Freitas, Esq. of Freitas & Freitas, LLP, appealing the response of the Executive Office of Health and Human Services (Office/EOHHS) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on May 29, 2020, Attorney Freitas requested the following: The COVID-19 status of all residents & staff/vendor staff at each congregate care program licensed by EEC (including emergency residential programs created by Gov.’s executive order) for residents 0-18 years old in the custody of the Department of Children and Families pursuant to required reporting in EEC policies, by program from 3/1/2020 to now. For each program, provide the name, town, and bed number for each facility, as well as the age, race, and ethnicity of each reported case, however, do NOT include any personal identifying information. The request for the COVID-19 status of all residents and staff at each program is made in conformity with the detailed data publically released by EOHHS regarding nursing facilities (see daily dashboard), versus the limited congregate care data released this week. Previous appeal The requested records were the subject of a previous appeal. See SPR20/0947 Determination of the Supervisor of Records (June 29, 2020). I closed SPR20/0947 after I learned that the Office provided a supplemental response on June 26, 2020. Unsatisfied with the Office’s response, Attorney Freitas petitioned this office and this appeal, SPR20/1052, was opened as a result. 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

Alexander D. deBlieck SPR20/1052 Page 2 July 14, 2020 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. The Office’s June 26th response In its June 26, 2020 response, the Office states that “. . . Ms. Freitas submitted an appeal claiming the following: (1) EOHHS produces responsive data on the Commonwealth’s weekly COVID-19 Reporting website; and (2) the Department of Children & Families (DCF), the Department of Public Health (DPH) and EEC stated they have no responsive records. EEC licenses the congregate care programs about which the Requester seeks information specific to each program. EEC provides certain data to EOHHS, which EOHHS posts on the Commonwealths weekly COVID-19 Reporting website which is available to the public. EOHHS does not have responsive records in its possession, custody or control.” In her previous June 16th petition, Attorney Freitas had stated the following: On May 26, 2020 and every Wednesday thereafter, EOHHS has publically released a limited data dashboard, located on its agency webpage entitled “EOHHS COVID-19 Reporting Data on Executive Office of Health and Human Services state-operated facilities and congregate care sites, mobile testing, and Department of Corrections onsite testing,” available at https://www.mass.gov/info-details/eohhs-covid-19-reporting. Included in this data is one summary chart entitled “EOHHS congregate care sites” with one line lumping all EOHHS sub-agency sites, including those overseen by DCF, DMH, etc. . . . Despite having this data compiled and published by EOHHS weekly, the EOHHS records officer responded on June 12, 2020 . . . that “EOHHS has determined that

Alexander D. deBlieck SPR20/1052 Page 3 July 14, 2020 it does not have documents responsive to your request in its possession, custody or control.” . . . That is simply not possible given the summary data regarding EOHHS congregate care sites that EOHHS is publishing on their website. . . . The Executive Office of Health and Human Services is the umbrella secretariat of DCF, DPH, and all other human services agencies in the Commonwealth. G.Lc. 66, § 10 places a duty on the RAO for the agency to identify any documents within the possession, care, or custody of the entire agency. As the EOHHS website and publically released summary data chart show, EOHHS has the raw data required to compile and post a summary chart of the data every Wednesday. . . . Under the Public Records Law, the Office is not required to create a record in response to a public records request. See G. L. c. 66, §6A(d). 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). Conclusion Where the Office confirms that it does not possess records as requested, and has no duty to create records responsive to the request, I will consider this administrative appeal closed. However, where the Office indicates that it receives certain data from EEC, the parties are encouraged to communicate further to determine whether alternative records may exist. Sincerely, Rebecca S. Murray Supervisor of Records cc: Christina Freitas, Esq.