Mary Jirmanus Saba v. Department of Public Health (SPR 20241212)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 6, 2024 SPR24/1212 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. 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. In an email to the Department on August 14, 2023, Ms. Saba modified the scope of Part 1 of the request to include “emails from February 1- May 31 between [three individuals]” and a set of 16 Department employees. She also reiterated that she still seeks records responsive to Part 2 of the request. Previous Appeals This request was the subject of previous appeals. See SPR23/1025 Determination of the Supervisor of Records (May 25, 2023); SPR23/1123 Determination of the Supervisor of Records (June 12, 2023); SPR23/2017 Determination of the Supervisor of Records (September 11, 2023) and SPR23/2433 Determination of the Supervisor of Records (October 26, 2023). In my October 26th determination, I found that the Department had met its burden to explain how it had provided a reasonable fee estimate for the production of records responsive to Ms. Saba’s modified August 14th request. Following further correspondence between Ms. Saba and the Department, I understand that Ms. Saba paid the requested fees on January 16, 2024. Subsequently, the Department responded on January 22, 2024, indicating it would begin review 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 SPR24/1212 Page 2 May 6, 2024 of the records. Unsatisfied with the Department’s response, and claiming not yet to have received responsive records, Ms. 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 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. 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. Saba contends that “[i]t has been several months since we last heard from DPH and have not yet received the records for which we have paid.” The Department’s January 22nd Response In its January 22, 2024 response, the Department states that it “received [Ms. Saba’s] payment of $328.75 last week, January 16, 2024” and “is in the process of retrieving the request[ed] records and will begin review of them.” Timeliness for Providing Records G. L. c. 66, § 10(b) provides, in pertinent part, that if the magnitude or difficulty of a request unduly burdens the other responsibilities of the agency or municipality such that the agency or municipality cannot provide records within 10 business days, the agency or municipality must inform the requestor in writing within 10 business days. With respect to the timeframe to produce responsive records, the written response shall: identify a reasonable timeframe in which the agency or municipality shall produce the public records sought; provided, that for an agency, the timeframe shall not exceed 15 business days following the initial receipt of the request for public records ... and

Helen Rush-Lloyd SPR24/1212 Page 3 May 6, 2024 provided further, that the requestor may voluntarily agree to a response date beyond the timeframes set forth herein. G. L. c. 66, § 10(b)(vi). Where Ms. Saba submitted her modified request on August 14, 2023, and paid the requested fees on January 16, 2024, and the Department has not yet provided responsive records, nor cited an exemption for withholding records, I find the Department has not met its burden in responding to the request in accordance with G. L. c. 66, § 10(b). Consequently, the Department must provide an estimated date as to when it intends to complete the search and provide the responsive records. See G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). To the extent possible, the Department must provide responsive records on a rolling basis. Conclusion Accordingly, the Department is ordered to provide Ms. Saba 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: Mary Jirmanus Saba