Mary Jirmanus Saba v. Department of Public Health (SPR 20232017)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 11, 2023 SPR23/2017 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 Mary Jirmanus Saba appealing the response of the Department of Public Health (Department) 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 Saba requested: [1] Correspondence between [two identified individuals] 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. Previous Appeal This request was the subject of a previous appeal. See SPR23/1025 Determination of the Supervisor of Records (May 25, 2023) and SPR23/1123 Determination of the Supervisor of Records (June 12, 2023). In my June 12th determination, I found that the Department had met its burden in providing Ms. Jirmanus Saba a reasonable fee estimate, and I encouraged Ms. Jirmanus Saba and the Department to communicate directly in order to facilitate providing records more efficiently and affordably. Subsequently, Ms. Jirmanus Saba contacted the Department to discuss narrowing the scope of her request, and the Department responded on August 24, 2023, indicating the request was “closed.” Unsatisfied with the Department’s response, Ms. Jirmanus Saba further appealed and this case 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 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 SPR23/2017 Page 2 September 11, 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); 950 C.M.R. 32.06(3); see also Dist. Att’y 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. 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. Current Appeal In her appeal petition, Ms. Jirmanus Saba explains that in multiple phone calls and in an email to the Department on August 14, 2023, she sought to narrow the scope of her request. Specifically, Ms. Jirmanus Saba indicated a narrowed date range and a specified list of individuals for the correspondence she is seeking. The Department’s August 24th Response In its August 24, 2023 response, the Department indicates that the “prior request OGC 2023-2 was closed.” As noted in my June 12th determination, this office encourages the Department to communicate directly with Ms. Jirmanus Saba in order to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii) (an agency shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency to produce the records sought more efficiently and affordably). Conclusion Accordingly, the Department is ordered to provide Ms. Jirmanus Saba with a response to her request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us.

Helen Rush-Lloyd SPR23/2017 Page 3 September 11, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Mary Jirmanus Saba