Richard L. Banks, Jr. v. Department of Public Health (SPR 20220657)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 31, 2022 SPR22/0657 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 Richard Banks 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 March 4, 2022, Mr. Banks requested, “[a]ny records in any form documenting or relating in any way to any report of a concern, allegation, or perceived instance of bias towards any DPH staff member or manager employee (or any third party) by a DPH staff member or manager employed in the office of the DPH General Counsel or by the DPH Bureau of Health Professions Licensure between the dates of January 1, 2018 and February 28, 2022 including, but not limited to any interview notes, investigation reports, summaries, conclusions, and/or referrals relating to the concerns, allegations, or perceived instances.” The Department responded on March 9, 2022. Unsatisfied with the response, Mr. Banks petitioned this office and this appeal, SPR22/0657, 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 agency or municipality of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § (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); 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 SPR22/0657 Page 2 March 31, 2022 The Department’s March 9, 2022 Response In its March 9th response, the Department stated, “[t]o the extent that you are requesting complaints, allegations, or reports relating to allegations of discrimination toward any DPH staff member or manager employee by a DPH staff member or manager employed in the office of the DPH General Counsel or by the DPH Bureau of Health Professions Licensure, such complaints, allegations or reports would be held by the Commonwealth’s Human Resources Division’s Investigations Center of Expertise (COE), which investigates all such complaints within Commonwealth agencies.” Current appeal In his appeal, Mr. Banks asserted that the Department, “… without claiming that there were no responsive records or citing exemptions for withholding any responsive records, failed to produce any records …” Based on the Department’s response, it is unclear if the Department possesses any records responsive to the request. 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). 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). Consequently, the Department must clarify whether responsive records exist. Conclusion Accordingly, the Department is ordered to provide Mr. Banks 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. Mr. Banks may appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Richard Banks