Jamie Munchbach v. Department of Public Health - Office of Emergency Medical Services (SPR 20240726)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 21, 2024 SPR24/0726 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 Jamie Munchbach 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 January 10, 2024, Ms. Munchbach requested, “copies of public records that align to the medical emergency on 6/15/2022 at . . . Weymouth, Ma, 02190 and investigated by the state under [a specified case number].” Prior Appeal This request was the subject of a prior appeal. See SPR24/0302 Determination of the Supervisor of Records (February 8, 2024). In my February 8th determination, I found that it was unclear if the Department possessed additional records responsive to the request. The Department provided a response on March 5, 2024. Unsatisfied with the Department’s response, Ms. Munchbach petitioned this office and this appeal, SPR24/0726, 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, § 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(d)(iv) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends 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 SPR24/0726 Page 2 March 21, 2024 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. The Department’s March 5th Response In its March 5, 2024 response, the Department provided records and stated: On January 24, 2024, the Department sent [Ms. Munchback] its response, including all responsive records in its possession, via U.S. Certified Mail. The records consisted of one 60-page PDF, six audio files, and two video files. Due to the large size, the records were provided on a USB drive… The 60-page PDF largely consisted of the OEMS investigation file, which, in relevant part, contained their investigation report, the complaint and evidence that initiated the investigation, communications related to obtaining information and statements during the investigation, interview reports from their investigation file, Weymouth Fire and Police Departments’ Dispatch and incident records, and related medical and hospital records. The video and audio files were also part of the evidence that was gathered as part of OEMS’ investigation and were provided to you in a digital format via USB drive. The Department would like to re-iterate that it has provided you with all of the records that are responsive to your request and has not withheld, nor redacted any of the records… From the Department’s review of [Ms. Munchbach’s] appeal to the SoR, it is our understanding that [she has] asserted that certain records were withheld or omitted from the Department’s response. Specifically, [she] believe[s] that the omissions included: 911 call recordings, a PCR form, incident reports, and certain medical records. For your reference, all 911 call recordings in the Department’s possession were provided to [her] on the USB drive. The remainder of the allegedly omitted materials were included in the PDF: PCR form (pages 20-25); several incident, dispatch, and interview reports and related notes/ communications from same (see e.g. pages 19; 42-51; 59-60). All of the medical records in the Department’s possession were also included in the PDF. Please note that other entities, such as South Shore Hospital, may possess additional medical records, but the Department has produced all of the records in its possession. Finally, it appears that in addition to copies of certain records, you would like further information as to “WHO, HOW, and the DATE and TIME each document

Helen Rush-Lloyd SPR24/0726 Page 3 March 21, 2024 was obtained…” As stated, the Department has provided you with all of the information you have requested to the extent that this information exists within the records in its possession. Please be advised that an agency is not required to create a record in order to respond to a public records request, G.L. c. 66, § 6A(d). Current appeal In her appeal, Ms. Munchbach stated, “[the Department] did not include the e-mail[s] that are associated with the files received for the 911 calls, EMS report, or police dispatch report… [the Department has] continued to withhold these documents… I have multiple other e-mail exchanges not included in [the Department’s] response…” In light of Ms. Munchbach’s appeal, it is unclear if the Department possesses additional records that may be responsive to the request. Particularly, it is uncertain if the Department possesses “. . . e-mail[s] that are associated with the files received for the 911 calls, EMS report, or police dispatch report…” 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). To the extent that responsive records exist, I find the Department must provide them in a manner consistent with the Public Records Law or identify an exemption that applies to withhold the records from disclosure. G. L. c. 66, § 10(b). The Department must clarify this matter. Conclusion Accordingly, the Department is ordered to provide Ms. Munchbach 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 the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Jamie Munchbach Leah Greene