Ryan Kath v. Department of Public Health (SPR 20202620)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 14, 2021 SPR20/2620 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 Ryan Kath of NBC10 Boston/NENC 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). On October 16, 2020, Mr. Kath requested the following records: ‘1. A report/list/count of all COVID-19 cases where the transmission occurred while playing youth or adult sports activity from March 1, 2020 thru present 2. A copy of all COVID-19 cluster investigations related to adult/youth sports games and/or teams from March 1, 2020 thru present.” On November 9, 2020, Mr. Kath amended the request to those records that could be produced within four hours of work. Mr. Kath filed an appeal with this office stating the Department has not responded or produced records responsive to his request, and SPR20/2620 was opened as a result. Appeal Under the Public Records Law and the Access Regulations (Regulations) all requests for public records must be met with a response within ten business days of receipt of the request. G. L. c. 66, § 10(a)-(b). The response may contain, among other things, an offer to provide records, a fee estimate for provision of the records, or a denial. G. L. c. 66, § 10(b). All records custodians must comply with both the Public Records Law and the Regulations with respect to the timeliness of response. 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) (written response must "identify any records, categories of records or portions of records that the agency or municipality intends 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 SPR20/2620 Page 2 January 14, 2021 to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based ... "); 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). It is unclear if the Department possesses the records requested by Mr. Kath. See G. L. c. 66, § 10(a)(ii), (b)(ii), (iii). 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), (b)(ii). Also, the duty to comply with requests for records extends to identifying the agency or municipality that may be in possession, custody, or control of the public record sought, if known. See G. L. c. 66, § 10(b)(iii). If the records are within the Department's possession and they intend to withhold the documents an exemption must be provided as stated above. See G. L. c. 66, § 10(b)(iv) (custodian has the burden of establishing the applicability of an exemption). Accordingly, the Department is ordered to review the requests made by Mr. Kath and provide any requested records in accordance with the Public Records Law, its Access Regulations and this order within ten 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: Ryan Kath