David S. Kassel v. Executive Office of Health & Human Services (SPR 20201866)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 15, 2020 SPR20/1866 Alexander deBlieck Public Records 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 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. Previous appeal The requested records were the subject of a previous appeal. See SPR20/1177 Determination of the Supervisor of Records (July 24, 2020). In my July 24th determination, I directed the Office to clarify whether it possessed records responsive to Mr. Kassel’s request. Subsequently, the Office provided a response on September 30, 2020. Unsatisfied with the Office’s response, Mr. Kassel petitioned this office and this appeal, SPR20/1866, was opened as a result. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all 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 SPR20/1866 Page 2 October 15, 2020 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 September 30th response In its September 30, 2020 response, the Office states “EOHHS conducted a search based on your modified PRR and found one (1) communication based on the search parameters. EOHHS reviewed the communication and erroneously determined it was not responsive to your request. Upon further review, EOHHS has determined the communication is responsive to your request. Accordingly, EOHHS now provides you with the one (1) communication. EOHHS has no additional records responsive to your request in its possession, custody, or control.” In his appeal petition, Mr. Kassel indicates that based on conversations with the Office in June it is his understanding there are extensive internal emails discussing the mandatory testing of staff. In light of this petition, Mr. Kassel and the Office are encouraged to communicate in order to facilitate producing records efficiently and affordably. The Office must use its knowledge of the records to facilitate providing any responsive records. G. L. c. 66, § 10(a)(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 municipality to produce records sought more efficiently and affordably). Also, 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 Accordingly, the Office is ordered to review the request and provide Mr. Kassel with a response, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) business days. A copy of any such response must be provided to this

Alexander deBlieck SPR20/1866 Page 3 October 15, 2020 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