David S. Kassel v. Executive Office of Health & Human Services (SPR 20201261)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 10, 2020 SPR20/1261 Alexander D. deBlieck Records Access Officer 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 June 16, 2020, Mr. Kassel requested the following records regarding “. . . a contract between the Executive Office of Health and Human Services (EOHHS) and Fallon Ambulance Service (the ‘contract’) for testing of individuals for the COVID-19 virus: [1] Any documentation bearing on the question whether any written or verbal agreement existed between EOHHS and Fallon regarding testing, prior to the effective date and signing of the contract on May 27. [2] The amount of funds paid to Fallon and/or its personnel as of the date of this Public Records request pursuant to the testing done and/or the total amount of funds projected to paid to Fallon pursuant to the testing. [3] Any plans and/or timelines developed prior to the effective date of the contract, or afterwards, regarding testing of persons in the Department of Developmental Services (DDS) system for COVID-19. [4] All daily reports filed by Fallon pursuant to the contract, documenting personnel hours worked, the number of individuals tested, the location and number of sites in which testing occurred, the operating or contracting agency associated with each site, and the clinical laboratory utilized for testing for each site. [5] All daily reports filed by Fallon showing the total number of tests projected for the following day (and further out, if available) by agency and site.” The Office responded on July 15, 2020, indicating it does not possess records responsive to Items 1, 4, and 5. The Office provided a link and responsive records to Items 2 and 3, 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 SPR20/1261 Page 2 August 10, 2020 respectively. Unsatisfied with the Office’s response, Mr. Kassel petitioned this office and this appeal, SPR20/1261, was opened as a result. This appeal pertains to Item 2 only. 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 July 15th response In the Office’s July 15, 2020 response, and with respect to Item 2, the Office indicates “EOHHS provides the following link . . . which provides statewide spending payment details.” In his appeal petition and subsequent email correspondence to this office, Mr. Kassel states the following: [With respect to Item 2] EOHHS provided no records in response to that portion of my request, but directed me instead to the Comptroller’s online database . . . This database, however, does not make it clear how to determine payments made to contractors. . . . The Comptroller’s Office staff I talked to [] was able to find a series of payments made by EOHHS to Fallon in Fiscal Year 2020. . . . However, the spreadsheet does not clearly identify payments concerning the COVID-19 testing program, which is the basis of Item 2 of my PRR. As a result, the Comptroller’s staff was unable to help me further, and suggested that I contact EOHHS to ask them to identify the payments I am referring to. 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

Alexander deBlieck SPR20/1261 Page 3 August 10, 2020 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.” Based on the Office’s response, coupled with Mr. Kassel’s claim that the link provided by the Office “. . . does not make it clear how to determine payments made to contractors,” I find it is unclear whether the responsive records are in the Office’s possession, custody, or control. See G. L. c. 60, § 10(a)(ii). Further, the Office must clarify whether it can provide responsive records by providing reasonable assistance in locating the requested record on a public website under G. L. c. 66, § 6A(d) as described above. 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 id. In accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: David Kassel