Jose L. Negron v. Department of Public Health (SPR 20210094)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 26, 2021 SPR21/0094 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 9 categories of records, including COVID-19 reports related to MCI Norfolk. Mr. Negron sent a modified request received by the Department on November 5, 2020, which included 5 categories of records related to COVID-19 at MCI Norfolk. Previous appeal This request was the subject of a previous appeal. See SPR20/2266 Determination of the Supervisor of Records (December 3, 2020). In my December 3rd determination, I found where the requestor had indicated that he had sent a modified request to the Department, I would consider the administrative appeal closed. The Department was advised to provide a response to the request within ten business days. The Department responded on December 9, 2020, indicating that it does not possess additional records responsive the request. Unsatisfied with this response, Mr. Negron petitioned this office and this appeal, SPR21/0094, 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. 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 SPR21/0094 Page 2 January 26, 2021 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. Current Appeal In its December 9th response, the Department indicates “[u]pon further review of your request and after a comprehensive search, DPH/BEH has not identified any records in its custody and control which are responsive to your request. The records you requested are in the custody of the Department of Corrections…” and provided the contact information. In his appeal petition, Mr. Negron requests “…the Supervisor of Record[s] to [r]espectfully order the (RAO) to produce all 100,000 pages…” It is my understanding a staff attorney of the Public Records Division discussed Mr. Negron’s appeal with the Department, and the Department confirmed it does not have additional records responsive to the original request, or modified request. The Department clarified the 100,000 pages initially believed to be responsive to the original request, are not responsive. Further, the Department indicated that Mr. Negron should direct his request to the Department of Corrections as they are in possession of the records he is seeking. The Department also indicated they intend on providing Mr. Negron with a response explaining the above. Conclusion Accordingly, Mr. Negron may wish to submit a new request to the Department of Corrections for the records he is seeking. Whereas the Department confirmed they do not possess additional responsive records, I will consider this administrative appeal closed. Sincerely, Rebecca S. Murray Supervisor of Records cc: Jose L. Negron