Christina Hager v. Department of Public Health (SPR 20210324)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 24, 2021 SPR21/0324 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 Christina Hager of WBZ-TV 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). Ms. Hager requested “[r]ecords showing the number of MA residents who’ve been offered a COVID-19 vaccine, and have refused it, to date.” The Department provided an initial response denying access to responsive records pursuant to Exemption (a) of the Public Records Law. G. L. c. 4, § 7(26)(a). Unsatisfied with the Department’s response, Ms. Hager petitioned this office and this appeal, SPR21/0324, 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. 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. 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 SPR21/0324 Page 2 February 24, 2021 The Department’s initial response In its response, the Department states, “[t]o the extent the Department has information that may be responsive to your request, it would be part of the Massachusetts Immunization Information System (MIIS). The Department is prohibited from disclosing information held in the MIIS pursuant to G.L. c. 111, §24M. Accordingly, this information is also exempt from disclosure pursuant to G. L. c. 4, § 7(26)(a) because it is exempt by statute.” Subsequent to the opening of this appeal, in an email correspondence on February 19, 2021, a representative of the Department informed this office that the Department intends on providing Ms. Hager with a supplemental response. Conclusion Accordingly, the Department is ordered to provide Ms. Hager with said response, in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) business days. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Ms. Hager may appeal the substantive nature of the Department’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Christina Hager