Jose L. Negron v. Department of Public Health (SPR 20202266)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 3, 2020 SPR20/2266 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 Jose Negron appealing the response of the Department of Public Health (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Mr. Negron requested a number of identified records. The Department responded on October 14, 2020, providing responsive records, indicating that it does not possess records responsive to portions of the request, and offering to assist in modifying the search. Unsatisfied with this response, Mr. Negron petitioned this office and this appeal, SPR20/2266, 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 SPR20/2266 Page 2 December 3, 2020 Current Appeal In its October 14, 2020 response, the Department states that it possesses records responsive to requests 1-3, however, such records total over 100,000 pages. The Department notes that this information is available on its website, however, Mr. Negron states in his petition that he is unable to access the internet. The Department states that it “is available to work with you to narrow or modify your request or explore options for reducing the size of this request or an alternative means of providing these records.” In his appeal petition, Mr. Negron indicates that he sent a modification of his request on October 30, 2020, limiting his search to information regarding MCI-Norfolk. It is unclear whether the Department has received this modification prior to the opening of this appeal. Where the requestor has indicated that he has sent a modified request to the Department, I will consider this administrative appeal closed. The Department must provide a response to this request within ten business days of receipt. See G. L. c. 66, § 10(a)-(b). 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. The requestor may appeal the substantive nature of this response within ninety days. See 950 C.M.R. 32.08(1). This office encourages the parties to continue to communicate to facilitate the Department providing Mr. Negron with the records he seeks. See G. L. c. 66, § 10(b)(vii) (an agency or 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 or municipality to produce records sought more efficiently and affordably). Sincerely, Rebecca S. Murray Supervisor of Records cc: Jose L. Negron