David S. Kassel v. Executive Office of Health & Human Services (SPR 20201303)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 18, 2020 SPR20/1303 Alexander 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 Mr. David Kassel 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 25, 2020, Mr. Kassel requested “any and all records having to do with the decision to change the reporting on the Weekly State Facility Report from cumulative or historic data on positive COVID-19 staff, client and/or patient cases and deaths to ‘current’ cases and deaths within the ‘last 7 days’” and “. . . any and all records relating to the decision whether or not to include data in the Weekly State Facility Report on testing of staff in vendor-operated ‘congregate care sites’ managed or overseen by DDS.” The Office provided a response on July 31, 2020, which included responsive records. Claiming to not have received all responsive records, Mr. Kassel petitioned this office and this appeal, SPR20/1303, 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. 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. 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 SPR20/1303 Page 2 August 18, 2020 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 31st response In its July 31, 2020 response, the Office states “[e]nclosed please find a PDF document titled ‘2020.06.13 8.02 AM FW_ Data Reporting Updates.pdf’ in response to your request. . . .” Additional records In his appeal petition, Mr. Kassel states the following: [B]ased on the records [the Office] provided, which primarily consist of internal EOHHS emails, it appears likely that EOHHS possesses additional internal emails or other communications that would be responsive to my original June 25 Public Records Request (PRR). . . . The records provided on July 31 include emails from Monica Sawhney, dated June 11 and 13, which refer to the attachments described. Those attachments were not included in the records provided by Mr. deBlieck on July 31, and are among the records that I believe EOHHS possesses and which would be responsive to my June 25 PRR. . . . Based on the discussion in the June 11 and 13 emails, it seems likely that the email attachments referred to above would bear directly on the issues noted in my June 25 PRR. It also appears likely that given the nature of the discussions in the emails provided by Mr. deBlieck on July 31, that there are additional emails in the possession of EOHHS that bear on the issues noted in my June 25 PRR. Only 8 emails were included in Mr. deBlieck’s July 31 response, and those emails covered only a four-day period from July 10 through July 13. As noted, it seems likely that discussion of the issues noted above in these emails began prior to July 10, and that they continued after July 13. In fact, in the final email provided, dated July 13, Ms. Sawhney invited eight other EOHHS officials to provide feedback on the attached “proposal for public reporting.” Based on Mr. Kassel’s claims, it is unclear if the Office possesses additional records responsive to his request. 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). Consequently, I find the Office must confirm if it possesses additional records. To the extent that additional records exist, I find the Office must provide it in a manner consistent with the Public Records Law or identify an exemption that applies to withhold the record from disclosure. G. L. c. 66, § 10(b).

Alexander deBlieck SPR20/1303 Page 3 August 18, 2020 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