Mary Jirmanus Saba v. Executive Office of Health & Human Services (SPR 20231025)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 25, 2023 SPR23/1025 Berlinda Bernard Paralegal – Records Access Officer Executive Office of Health and Human Services One Ashburton Place Boston, MA 02108 Dear Ms. Bernard: I have received the petition of Mary Jirmanus appealing the response of the Executive Office of Health and Human Services (Office) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 1, 2023, Ms. Jirmanus requested: [1] Correspondence between Erica Shenoy and/or Shira Doron with anyone in Health and Human Services or the MA DPH regarding masks in healthcare and pre-procedure COVID testing in healthcare during February and March 2023; and [2] Meeting minutes of the Healthcare Associated Infection Technical Advisory Board Meeting, during the month of March 2023. In a May 15, 2023 response to Ms. Jirmanus, the Office indicates that it “does not have records responsive to your request in its possession, custody, or control. You may wish to submit your [Public Records Request] to the Department of Public Health (DPH). You may do so by emailing DPH.RAO@mass.gov or via the following online portal: https://www.mass.gov/forms/request-public-records-from-the-department-of-public-health. [The Office] now considers your request closed.” As a result of the Office’s May 15th response, Ms. Jirmanus petitioned the Supervisor of Records (Supervisor), and this appeal was opened. In her petition, Ms. Jirmanus objects to the Office directing her to DPH to submit her request. 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 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

Berlinda Bernard SPR23/1025 Page 2 May 25, 2023 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) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based…”); 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). If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Based upon a conversation between a Senior Attorney in the Public Records Division and a representative of the Office, it is my understanding that Ms. Jirmanus’ request was forwarded to the DPH for review and a response regarding Ms. Jirmanus’ original request to the Office. As a result, in a May 24th email to Ms. Jirmanus and the Public Records Division, the Office indicates, “DPH received your request on 5/15/23. It is currently in process. You will receive a response on or before 5/30/23. For your records, your request has been assigned [an identified tracking number]. Thank you.” Conclusion If outstanding issues remain after DPH provides its response, Ms. Jirmanus may file a subsequent appeal. Sincerely, Manza Arthur Supervisor of Records cc: Ms. Mary Jirmanus