Rachel Talamo v. Essex County Correctional Facility (SPR 20241886)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 15, 2024 SPR24/1886 Gretchen Grosky Essex County Sheriff’s Department 20 Manning Avenue Middleton, MA 01949 Dear Ms. Grosky: I have received the petition of Rachel Talamo, Esq., of Prisoners’ Legal Services, appealing the response of the Essex County Sheriff’s Department (Department) 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, Mr. Al Troisi, a paralegal at Prisoners’ Legal Services, requested: [1] All documents reflecting current policies and protocols on Hepatitis C tests and treatment; [2] All documents reflecting the number of Hepatitis C tests requested by prisoners by year, in 2022, 2023, and 2024; [3] All documents reflecting the total number of people tested for Hepatitis C, by year, in 2022, 2023, and 2024, including, if available, all documents reflecting the race and/or ethnicity of all people tested; and, [4] All documents reflecting the total number of prisoners treated for Hepatitis C, by year, in 2022, 2023, and 2024. In an April 30, 2024 email to the Department, Mr. Troisi followed up on his public records request. On May 1, 2024, the Department provided a response. Unsatisfied with the Department’s response, Attorney Talamo petitioned this office and this appeal, SPR24/1886, was opened as a result. While this appeal was pending, the Department provided a supplemental response on July 15, 2024. 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 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

Gretchen Grosky SPR24/1886 Page 2 July 15, 2024 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 Department’s May 1st response In its May 1, 2024 response, the Department asserted, “… [a]s you may know, the Department contracts with a private medical provider, WellPath, which administers medical care and treatment to our inmate population. We will be working with WellPath to respond to your request…” Current Appeal In the appeal petition, Attorney Talamo asserts, “[o]n May 1, [Attorney Mitchell] notified [the Prisoners’ Legal Services] the she would be handling [the] request … [Attorney] Mitchell as records custodian was then required to either produce the requested records or inform [the requestor] in writing within 10 days of her specific reasons for withholding them. This is an appeal under 950 C.M.R. 32.08 of [Attorney] Mitchell’s failure to do so…” The Department’s July 15th supplemental response Subsequent to the opening of this appeal, in a July 15, 2024 email, the Department states, “[t]he Department has not yet provided a response to Attorney Talamo, but intends to provide a response to the request. The records request is in regards to medical information and the Department is working with its contracted medical provider, Wellpath, to respond to the request.” Timeliness in providing records G. L. c. 66, § 10(b) provides, in pertinent part, that if the magnitude or difficulty of the 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:

Gretchen Grosky SPR24/1886 Page 3 July 15, 2024 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 for a municipality the timeframe shall not exceed 25 business days following the initial receipt of the request for public records; and 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 Mr. Troisi submitted the request on March 18, 2024, it remains unclear why the Department has not provided the responsive records. 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). Custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5); see also G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). The Department must provide Attorney Talamo with a date that the Department will commence production of the records. Additionally, if possible, the Department should provide the responsive records on a rolling basis. Conclusion Accordingly, the Department is ordered to provide Attorney Talamo 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. Attorney Talamo may appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Rachel Talamo, Esq., Prisoners’ Legal Services Jordan Elizabeth Mitchell, Esq., Assistant General Counsel, Essex County Sheriff’s Department