Paul Burns v. Executive Office of Health & Human Services (SPR 20242287)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 26, 2024 SPR24/2284 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 Paul Burns 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 July 17, 2024, Mr. Burns stated, “[r]elated to the shelter that has been established at the former Bay State Correctional Institution in Norfolk MA, I would like access to the bid that was conducted to determine the service provider for the shelter. I would also like copies of the responses received for this bid. Should it be found that no bid was conducted, I would like a copy of the ‘No Bid Justification’. Should it be found that no ‘No Bid Justification’ was completed, I would like [the Office] to search [its] files to send me what served as authorization to proceed with entering into a contract with the provider.” The Office responded on July 31, 2024. Unsatisfied with the Office’s response, Mr. Burns petitioned this office and this appeal, SPR24/2284, 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 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. SPR24/2284 Page 2 August 26, 2024 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 July 31st Response On July 31, 2024, the Office stated, “EOHHS is unable to provide a complete response by July 31, 2024. Pursuant to G.L. c. 6 § 10(b)(vi), EOHHS estimates a response will issue by August 7, 2024 (15 business days after PRR receipt).” 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: 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. Burns submitted his request on July 17, 2024, it is unclear why the Office 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). Consequently, I find the Office must provide an estimated date as to when it intends to complete the search and provide the outstanding records. 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 Mr. Burns with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations

Hayley Carr, Esq. SPR24/2284 Page 3 August 26, 2024 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: Paul Burns