David S. Kassel v. Executive Office of Health & Human Services (SPR 20201177)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 24, 2020 SPR20/1177 Alexander deBlieck Public Records Paralegal Executive Office of Health and Human Services 1 Ashburton Place, Room 1109 Boston, MA 02108 Dear Mr. deBlieck: I have received the petition of David Kassel of the Massachusetts Coalition of Families and Advocates, Inc. 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 26, 2020, Mr. Kassel requested “. . . any and all records in possession of [the Office], including memos and emails, that discuss whether testing of staff for COVID-19 in residential facilities under the supervision or oversight of your agenc[y] should be mandatory.” The Office provided an initial response on June 9, 2020, seeking clarification of the request. On June 9, 2020, Mr. Kassel modified his request to “[e]mail communications and internal memos between Secretary Sudders and her executive office team, including Dan Tsai, and DPH/DDS regarding whether testing of staff for COVID-19 in residential facilities or DDS group homes should be mandatory. EOHHS will use the timeframe of April 1, 2020 through June 1, 2020. . . [U]se the search terms: ‘testing’ AND ‘mandatory’ AND ‘staff.’” Additional search terms were provided on June 23, 2020. The Office provided subsequent responses on July 9, 2020 and July 14, 2020. Unsatisfied with the Office’s responses, Mr. Kassel petitioned this office and this appeal, SPR20/1177, 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. 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 deBlieck SPR20/1177 Page 2 July 24, 2020 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 July 9th and 14th responses In its July 9, 2020 response, the Office indicates that it intends on providing a responsive record. It also states that majority of the records would be in the possession of DDS and DPH. In its July 14, 2020 response, the Office indicates that “EOHHS does not have responsive records as per your search criteria. [The Office] informed you on July 9th, that the belief is DPH and DDS would have all potentially responsive records. EOHHS still considers this an open matter as we can continue to adjust your search criteria. EOHHS is happy to continue to work with you regarding this PRR and providing any potentially relevant responsive record in our possession.” Based on the Office’s responses, it is unclear whether it possesses any records responsive to Mr. Kassel’s request. The Office is reminded that 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); see also G. L. c. 66, § 10(b)(iv) (a written response shall 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, the Office must clarify whether it possesses responsive records. Further, where the Office indicates that it is happy to continue working with Mr. Kassel regarding his request, this office encourages the parties to continue to communicate to allow the Office to provide Mr. Kassel with records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii) (an agency shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency to produce records sought more efficiently and affordably.). Conclusion Accordingly, the Office 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 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.

Alexander deBlieck SPR20/1177 Page 3 July 24, 2020 Sincerely, Rebecca S. Murray Supervisor of Records cc: David Kassel