Frederick Perry v. Wellpath (SPR 20202145)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 18, 2020 SPR20/2145 Susan Lantagne Acting Regional Vice President Wellpath Regional Office 16 Chestnut Street, Suite 250 Foxborough, MA 02035 Dear Ms. Lantagne: I have received the petition of Frederick Perry appealing the response of Wellpath to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Perry requested: 1. “The policy and procedure regarding Code 99 Medical Emergencies within a Department of Corrections Facility in place from January 1, 2018 to present. 2. The policy and procedure for follow-up care of an inmate who, as a result of a Code 99 medical emergency, was taken to an outside hospital and later returned to the prison.” Wellpath responded on October 13, 2020, asserting that it is a private entity not subject to the Public Records Law, and denying access to responsive records. Unsatisfied with Wellpath’s response, Mr. Perry petitioned this office and this appeal, SPR20/2145, was opened as a result. The Public Records Law The Public Records Law applies to all records ...made or received by any officer or employee of any agency, executive office, department, board, commission, bureau, division or authority of the commonwealth, or of any political subdivision thereof, or of any authority established by the general court to serve a public purpose, or any person, corporation, association, partnership or other legal entity which receives or expends public funds for the payment or administration of pensions for any current or former employees of the commonwealth or any political subdivision as defined in section 1 of chapter 32… G.L. c. 4 § 7(26). 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

Susan Lantagne SPR20/2145 Page 2 November 18, 2020 The Public Records Law therefore applies to public entities, and does not apply to private entities who are not engaged in an agency or contractual relationship with a public entity. Public records must be maintained and kept in a manner that allows access by the general public, as they are subject to mandatory disclosure upon request. G. L. c. 66, § 10(a); -see also- Reinst-ein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979). Current Appeal In its October 13, 2020 response, Wellpath asserts that it “is a private entity that is not subject to the Massachusetts Public Records Law, and its private records do not fall within the definition of ‘public records.’” Where a public entity contracts with a third party to fulfill its public duties, and the public entity exercises control over that third party, an agency relationship is created. See Fifty-one Hispanic Residents of Chelsea, 421 Mass. at 607 (while subject to control of a public entity as a principal for purposes of performing public duties, private university is a public agent). Whenever a record custodian keeps original public records in a location other than the government building, he or she has a duty to make the public records available in a location convenient to the general public for inspection and copying. Consequently, based on Wellpath’s response it is unclear whether there is an agency relationship between Wellpath and the Department of Correction (Department). As such, I find Wellpath/Department must provide additional information regarding this relationship in order to determine whether it has met its burden in responding to this request. Sincerely, Rebecca S. Murray Supervisor of Records cc: Frederick Perry Kate Silvia, Department of Correction