Emmett S. Muldoon v. Department of Public Health (SPR 20211848)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 4, 2021 SPR21/1845; SPR21/1848 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 Emmett S. Muldoon 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). On June 22, 2021, Mr. Muldoon submitted two requests to the Department. His first request sought four categories of records related to an “Abuse Hotline,” including “any and all reports of abuse of inmates in the custody of the Massachusetts Department of Correction.” His second request sought seven categories of records relating to the “license (or any document within that category) issued to the MCI Norfolk Health Services Unit.” The Department responded on July 13, 2021, providing documents in redacted form, and indicating that it did not possess other responsive records. Unsatisfied with the Department’s response, Mr. Muldoon appealed, and this case 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 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 SPR21/1845; SPR21/1848 Page 2 August 4, 2021 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); -se-e -a-ls-o 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Current Appeal In his appeal petition, Mr. Muldoon first contends that in a listing of “Abuse Reporting Hotline Numbers, the DPH is listed with an “Abuse Hotline” number.” He also contends that “a copy of the hospitals listing for Norfolk, Massachusetts . . . identified the MCI Norfolk Health Services Unit.” He notes that the “listing was copied from the Massachusetts Lawyers Diary and Manual (2021 ed.).” He further argues that “it doesn’t seem plausible that the DPH would have an abuse hotline, yet have no code of Massachusetts regulations, any other polices, guidelines, etc., or more individuals to oversee issues of abuse.” Mr. Muldoon secondly contends that the Department’s response concerning licenses “conflicts with [the listing cited above] where the MCI Norfolk Health Services Unit is listed as a hospital.” The Department’s July 13th Response In its July 13, 2021 response, regarding Mr. Muldoon’s first request, the Department provides him redacted copies of “6 documents (totaling 39 pages) of letters received from inmates and other interested parties alleging mistreatment at Department of Correction (DOC) facilities.” The Department stated “that [Department] regulations relate to safety and sanitation of facilities, but when [the Department] receives letters alleging mistreatment, [the Department] informs the writer to contact legal services as a matter of practice.” In a phone conversation with this office on July 29, 2021, a representative for the Department explained that the “Abuse Hotline” Mr. Muldoon refers to in his request and appeal is for long term care facilities, such as nursing homes, and not for corrections facilities. As a result, the Department refers any complaints received about corrections facilities to a legal services office. The Department reiterated that the letters provided to Mr. Muldoon are the only records in the Department’s possession of reports of abuse at corrections facilities. Regarding Mr. Muldoon’s second request, the Department states that it “does not have records within its custody and control responsive to these requests. [The Department] does not license Department of Corrections healthcare facilities. While [the Department] licenses health care providers who may work in this facility, [the Department] does not maintain employment information on [its] licensees.” In the same phone conversation with this office referenced above, the Department clarified that Department of Corrections healthcare facilities are not hospitals under the statutory authority of the Department of Public Health, and that the Massachusetts Lawyers Diary and Manual from which Mr. Muldoon obtained his listing of hospitals is not an

Helen Rush-Lloyd SPR21/1845; SPR21/1848 Page 3 August 4, 2021 official publication of the Department. Records in Existence 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). Further, in accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). In this case, the Department has confirmed that it does not possess additional responsive records, explaining that its “Abuse Hotline” is not intended for corrections facilities, and that it does not license health care facilities within corrections facilities. Conclusion Accordingly, I will consider these administrative appeals closed. If Mr. Muldoon is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, §§ 10(b), 10A(c). Sincerely, ·. • ·.· - ~ I - - - Rebecca S. Murray Supervisor of Records cc: Emmett S. Muldoon