Jonathan M. Albano v. Department of Public Health (SPR 20221743)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 22, 2022 SPR22/1743 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 Jonathan M. Albano, Esq., of Morgan, Lewis & Bockius LLP, of behalf of the Boston Globe 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 April 5, 2022, Jessica Bartlett, of the Boston Globe, requested the following records: [1] All correspondence between members of Department of Public Health staff/Health and Human Services staff and [named person] from Jan. 1, 2021 through present. [2] All correspondence between members of Department of Public Health staff/Health and Human Services staff and [named person] from Jan. 1, 2021 through present. [3] All correspondence between members of Department of Public Health staff/Health and Human Services staff and employees of Mass General Brigham (sometimes dba Partners HealthCare) as it relates to the determination of need for: - Mass General Brigham Incorporated [and identified files] from Jan. 1, 2021 through present. [4] Draft of staff report to the public health council for a determination of need for Mass General Brigham Incorporated - Multisite … Prior Appeals This request was the subject of previous appeals. See SPR22/1013 Determination of the Supervisor of Records (May 16, 2022) and SPR22/1300 Determination of the Supervisor of Records (June 21, 2022). The Department responded on July 6, 2022. Unsatisfied with the response, Attorney Albano petitioned this office and this appeal, SPR22/1743, was opened as a result. 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 SPR22/1743 Page 2 August 22, 2022 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, § 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. The Department’s July 6th response In its July 6, 2022 response, the Department provided certain documents with redactions. The Department cited attorney-client privilege and Exemptions (d) and (n) of the Public Records Law to redact the draft of staff report to the public health council for a determination of need for Mass General Brigham Incorporated – Multisite. In camera inspection In order to facilitate a determination as to the applicability of the Department’s claims to redact the records, the Department must provide this office with the un-redacted copy of the responsive records for in camera inspection. After I complete my review of the documents, I will return the records to your custody and issue an opinion on the public or exempt nature of the record. See 950 C.M.R. 32.08(4). The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations, 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Massachusetts Comm’n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a

Helen Rush-Lloyd SPR22/1743 Page 3 August 22, 2022 promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. Please be aware, any cover letter submitted to accompany the relevant records may be subject to disclosure. Order Accordingly, the Department is ordered to provide this office with an un-redacted copy of the responsive records for in camera inspection without delay. Sincerely, Manza Arthur Supervisor of Records cc: Jonathan M. Albano, Esq. Rebecca J. Rodman, Esq.