David S. Kassel v. Department of Public Health (SPR 20201422)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 2, 2020 SPR20/1422 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 David Kassel of the Massachusetts Coalition of Families and Advocates, Inc. appealing the response of the Department of Public Health (Department/DPH) 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 any of your agencies (DPH, DDS, EOHHS), including memos and emails, that discuss whether testing of staff for COVID-19 in residential facilities under the supervision or oversight of your agencies should be mandatory.” The Department provided a response on June 17, 2020, including a fee estimate. Unsatisfied with the Department’s response, Mr. Kassel petitioned this office and this appeal, SPR20/1422, 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

Helen Rush-Lloyd SPR20/1422 Page 2 September 2, 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. Current Appeal In his appeal petition, Mr. Kassel states the following “[o]n June 17, I received a response from DPH to my May 26 PRR, stating that DPH had identified 2,762 emails potentially responsive to my PRR, and that it would cost $1,626 to provide them…[o]n June 18, I replied to DPH…offering to narrow my PRR in order to avoid a charge for the documents. I never received a response to my offer.” Where Mr. Kassel has offered to narrow his request, the Department is to communicate further with Mr. Kassel to facilitate providing the records more efficiently and affordably. See G. L. c. 66, §10(b)(vii) (a municipality 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 Department is ordered to provide Mr. Kassel with a response to his offer to modify his request, in a manner consistent with this order, the Public Records Law and its Regulations within 10 business days. 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