Noah Bombard v. Department of Public Health (SPR 20211283)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 7, 2021 SPR21/1283 Helen Rush-Lloyd Records Access Officer Department of Public Health 250 Washington Street Boston, MA 01208 Dear Ms. Rush-Lloyd: I have received the petition of Noah Bombard of MassLive 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. Bombard requested “. . . suppressed [COVID vaccination] data, which would include all age groups for all communities.” The Department provided a response on May 7, 2021. Unsatisfied with the Department’s response, Mr. Bombard petitioned this office and this appeal, SPR21/1283, 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-Llyod SPR21/1283 Page 2 June 7, 2021 The Department’s May 7th response In its May 7, 2021 response, the Department explains that “[s]uppression is done in order to prevent the data from being used to identify individuals. In categories with small numbers (especially rare age or race/ethnicity categories in municipalities with small populations), the chance that someone would have sufficient additional information to identify who specifically was diagnosed with COVID-19 increases.” The Department’s response did not contain the specificity required in a denial of access to public records. Although the Department states that suppression is done to prevent the data from being used to identify individuals, it is unclear what exemption under the Public Records Law the Department is claiming to withhold the responsive records. Under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, § 10(b)(iv); see also Globe Newspaper Co. v. Police Comm’r, 419 - - - - - Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. As a result, I find the Department has not met its burden of explaining with specificity how the requested records are exempt from disclosure. Conclusion Accordingly, the Department is ordered to provide Mr. Bombard with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) 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: Noah Bombard