Stephanie Ebbert v. Executive Office of Health & Human Services (SPR 20241325)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 15, 2024 SPR24/1325 Hayley Carr, Esq. Assistant General Counsel Executive Office of Health and Human Services One Ashburton Place Boston, MA 02108 Dear Attorney Carr: I have received the petition of Stephanie Ebbert, of the Boston Globe, appealing the response of the Executive Office of Health and Human Services (Office/EOHHS) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 18, 2024, Ms. Ebbert requested the following records: [1] The name, address, and operator of every site that has housed or screened any migrant family since Jan. 1, 2023 through the Emergency Assistance program. Please also include any sites operated by United Way or other nonprofits[;] [2] The total number of individuals housed and screened at each site during each contract[;] [3] Contracts and subcontracts with all operators, providers, and any other entities working at those sites[;] [4] The scope of services and attachments associated with each contract[;] [5] Records documenting all payments made for those contracts[.] On April 18, 2024, Ms. Ebbert also requested the following records “regarding emergency assistance shelters”: [1] The number of sex offenders identified at or near each emergency assistance shelter site by or to your agencies since September 2022. Please break out results by individual shelter, type of shelter, and location (eg., Woburn 1, hotel, Woburn 2, congregate site, Woburn 3, scattered site). [2] A log of all Serious Incident Reports kept by emergency assistance shelters overseen by your agencies, broken out by individual shelter, type of shelter, and location (eg., Woburn 1, hotel, Woburn 2, congregate site, 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

Hayley Carr, Esq. SPR24/1325 Page 2 May 15, 2024 Woburn 3, scattered site), with either a copy of each report or a summary of the incident[.] [3] A detailed list of all inspections conducted at emergency assistance shelters by or for your agencies since September 2022 and the resulting reports, grades or summaries of the inspections[.] Prior Appeal The requested records were the subject of a prior appeal. See SPR24/1192 Determination of the Supervisor of Records (May 1, 2024). In my May 1st determination, I learned that the provide a further response to Ms. Ebbert on April 26, 2024. Unsatisfied with the Office’s response, Ms. Ebbert petitioned this office and this appeal, SPR24/1325, 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. The Office’s April 26th Response In its April 26, 2024 response, the Office provided the following: [1] EOHHS encloses one (1) zipped folder which contains records responsive to [the] request. The records may be accessed at the following Adobe link...” The Office cited Exemptions (c) and (n) of the Public Records Law to withhold certain requested records. . . . [c]ertain information—specifically, the names and addresses of shelter sites—have been redacted pursuant to exemptions (c) and (n) of the public records law, which exempt the disclosure of certain records that, if disclosed, would constitute an “unwarranted invasion of personal privacy” or “jeopardize public safety”, respectively. These redactions have been made only

Hayley Carr, Esq. SPR24/1325 Page 3 May 15, 2024 where EOHHS has determined them necessary. EOHHS has no records responsive to your request for contracts pertaining to United Way or another non-profit not under a contract with EOHHS. [2] EOHHS provides the following count of individuals (through 3/25/24):  Quincy Site at Eastern Nazarene College – 2,249 individuals  Cambridge Overflow Site – 453 individuals  Roxbury Overflow Site – 414 individuals  Revere Clinical Safety and Risk Assessment site – 493 individuals [3] . . . Please see contracts provided in response to the first item in your PRR. EOHHS has no additional responsive records. [4] . . . Please see contracts provided in response to the first item in your PRR. EOHHS has no additional records responsive to this request. [5] . . . EOHHS stated that it continues to process your PRR and will provide the remaining records responsive to your request on a rolling basis as soon as practicable. Current appeal In her appeal, Ms. Ebbert stated, “[m]y March 18, 2024 request has not been satisfied. Still unfulfilled is [5.] Records documenting all payments made for those contracts See attached April 26, 2024 response, which states, ‘EOHHS continues to process your PRR and will provide the remaining records responsive to your request on a rolling basis as soon as practicable’.” Ms. Ebbert also advised that her April 18, 2024 request for records “regarding emergency assistance shelters” has not been satisfied. Possession, Custody, or Control of Public Records Based on the Office’s response, it is unclear if the Office possesses any additional records for the outstanding records request. The duty to comply with a request 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). The Office must clarify whether it possesses the requested records. To the extent that records exist, I find the Office 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). See G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). To the extent possible, the Office must provide responsive records on a rolling basis. Conclusion Accordingly, the Office is ordered to provide Ms. Ebbert with a response, 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(s) 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. Ms. Ebbert may appeal the substantive nature of the Office’s response within ninety (90) days. See 950 C.M.R. 32.08(1).

Hayley Carr, Esq. SPR24/1325 Page 4 May 15, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Stephanie Ebbert