Brittany Young v. Department of Public Health - Bureau of Health Care Safety and Quality (SPR 20212422)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 5, 2021 SPR21/2422 Helen Rush-Lloyd Records Access Officer Department of Public Health Bureau of Health Care Safety and Quality 67 Forest Street Marlborough, MA 01752 Dear Ms. Rush-Lloyd: I have received the petition of Brittany Young appealing the response of the Department of Public Health (Department/DPH) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 11, 2021, Ms. Young requested, “... the Serious Reportable Event report pertaining to [a named individual] when [they were] at Tufts Medical Center [on a certain date].” On September 14, 2021, the Department responded. Unsatisfied with the Department’s response, Ms. Young petitioned this office and this appeal, SPR21/2422, 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. 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 SPR21/2422 Page 2 October 5, 2021 The Department’s September 14th Response On September 14, 2021, the Department stated, “[a]ttached to this email is DPH’s authorization form. Please return completed with signatures and any supporting documentation showing legal standing to receive documents pertaining to [the] named individual.” In an email correspondence dated October 4, 2021, Ms. Young informed this office that the public records that she is requesting are the subject of a dispute in active litigation pending in Suffolk Superior Court. See Tricia Johnson vs. Ferzandi, MD, et al (Docket No. 184CV01549). Pending litigation 950 C.M.R. 32.08(2)(b) provides in pertinent part: The Supervisor may deny an appeal for, among other reasons if, in the opinion of the Supervisor: 1. the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation. In light of the pending matter, it is my determination that the records at issue in this appeal are the subject of a dispute in active litigation. Accordingly, I decline to opine on this matter at this time. See 950 C.M.R. 32.08(2)(b). It should be noted that a change in the status of this action could impact the applicability of 950 C.M.R. 32.08(2)(b). Sincerely, Rebecca S. Murray Supervisor of Records cc: Brittany Young