Jean Z. Batty v. Executive Office of Health & Human Services (SPR 20212237)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 13, 2021 SPR21/2237 Shara Bedard Records Access Officer Executive Office of Health and Human Services One Ashburton Place; 11th Floor Boston, MA 02108 Dear Ms. Bedard: I have received the petition of Jean Z. Batty, Director of Advocacy, Compassionate Care ALS, appealing the response of the Executive Office of Health and Human Services (EOHHS) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 10, 2021, Ms. Batty requested copies of identified emails. In an August 24, 2021 letter, the EOHHS informed Ms. Batty, “…EOHHS continues to process your request to gather potentially responsive records. EOHHS is unable to provide a complete response by August 24, 2021; doing so would interfere with its other responsibilities. Pursuant to G. L. c. 6 § 10(b)(vi), EOHHS estimates a response will issue by August 31, 2021.” On August 30th, Ms. Batty emailed the EOHHS inquiring, “[d]oes it look like I will receive the requested emails by tomorrow?” In response on August 31st, Ms. Bedard at EOHHS informed Ms. Batty, “[a]s EOHHS continues working with divisions in its review process of responding to your request, we cannot provide a response package to you by [close of business] today. If you agree to an additional five business days to September 7 to complete our review process, we would greatly appreciate it.” Ms. Batty responded, “I do not believe that this request is that extensive to need two time extensions to process…I had taken off from work this week in part to review these materials. I would like you to send me everything you have collected to date. Thank you.” Unsatisfied with EOHHS’s response, on August 31st, Ms. Batty petitioned the Supervisor of Records (Supervisor), and this appeal was opened. In her petition, Ms. Batty asserts, “[a]pparently, the materials have been redacted and reviewed by an attorney and now have to be reviewed by a legal team….There is no reason to prevent them from getting these records to me with the extension I previously agreed upon.” 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

Shara Bedard SPR21/2237 Page 2 September 13, 2021 In a follow-up correspondence on September 10th with this office, the EOHHS indicated, “[w]e are concluding our work with agency divisions at this time and will be able to issue a response next week.” Timeliness provision for responding and producing responsive records The EOHHS is advised of the timeliness provisions of the Public Records Law in responding to a public records request, and in producing the responsive records to the requestor. G. L. c. 66, § 10(b) provides, in pertinent part, that if the magnitude or difficulty of the request unduly burdens the other responsibilities of the agency such that the agency cannot provide records within 10 business days, the agency must inform the requestor in writing within 10 business days. With respect to the timeframe to produce responsive records, the written response shall: identify a reasonable timeframe in which the agency…shall produce the public records sought; provided, that for an agency, the timeframe shall not exceed 15 business days following the initial receipt of the request for public records…following the initial receipt of the request for public records; and provided further, that the requestor may voluntarily agree to a response date beyond the timeframes set forth herein. G. L. c. 66, § 10(b)(vi). I find that the EOHHS has not met its burden in responding to Ms. Batty’s request in accordance with G. L. c. 66, § 10(b)(vi). Consequently, I find the EOHHS must provide the responsive records, and to the extent possible, the EOHHS must provide the responsive records on a rolling basis. See G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). Order Accordingly, the EOHHS is ordered to provide Ms. Batty with a response to the request, in a manner consistent with this order, the Public Records Law and its Regulations within 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.

Shara Bedard SPR21/2237 Page 3 September 13, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: Jean Z. Batty, Compassionate Care ALS