Rachel Talamo v. Essex County Sheriff's Department (SPR 20242868)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 1, 2024 SPR24/2868 Jordan Elizabeth Mitchell, Esq. Assistant General Counsel Essex County Sheriff’s Department 20 Manning Avenue P. O. Box 807 Middleton, MA 01949 Dear Attorney Mitchell: 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, Al Troisi, also of 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. Previous Appeals The request was the subject of previous appeals. See SPR24/1886 Determination of the Supervisor of Records (July 15, 2024) and SPR24/2537 Determination of the Supervisor of Records (September 23, 2024). In my September 23rd determination, it was my understanding that the Department intended to provide a further response to Attorney Talamo. The Department provided a response on October 17, 2024. Unsatisfied with the Department’s response, Attorney Talamo petitioned this office and this appeal, SPR24/2868, was opened as a result. 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

Jordan Elizabeth Mitchell, Esq. SPR24/2868 Page 2 November 1, 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 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 October 17th response In its October 17, 2024 response, the Department stated, “[c]onsistent with the Supervisor of Records’ Order, dated September 23, 2024, the Department provided a response to Ms. Talamo on that same day indicating that the Department provided all responsive documents to the request, thereby fulfilling all obligations under the public records law. I indicated that I would need to consult with Wellpath representatives and counsel to determine if any clarification was required, but after further review of Ms. Talamo’s objections in her appeal, the Department maintains that all responsive documentation has been provided and that no further clarification is required at this time.” Current appeal In her October 18, 2024 appeal, Attorney Talamo asserts, “[t]he Department has not confirmed that these documents, which are responsive to my request and requested in my appeal, do not exist. The Department’s own records suggest that they do, in fact, exist. If you deem it appropriate, I request that you please look into this matter and order the Department to produce these records.” In her September 30, 2024 appeal, Attorney Talamo states the following: [1] There is no written documentation of protocols for testing incarcerated people for Hepatitis C, including with respect to Greater Lawrence Family Health’s obligations to fulfill such criteria.

Jordan Elizabeth Mitchell, Esq. SPR24/2868 Page 3 November 1, 2024 [2] There is no written documentation of the Department’s inclusionary and exclusionary criteria for Hepatitis C treatment, despite the box entitled “inclusionary/exclusionary criteria” on the blank Wellpath HCV Committee Worksheet and reference to the HCV Committee’s “parameters” for treatment in the Hepatitis C Virus (HCV) Committee Manual. [3] There is no written documentation of the Department’s risk-stratification process, despite reference in the Department’s Control and Treatment of Hepatitis C Manual to risk-stratification as an essential step in a patient of the Department’s ability to access Direct Acting Antiviral therapy for HCV. In a conversation between the Department and an attorney at the Public Records Division, the Department confirmed that it has no additional records responsive to Attorney Talamo’s request. No Duty to Create Records Please be advised, under the Public Records Law the Department is not required to create a record in response to a public records request. See G. L. c. 66, §6A(d). In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See 32 Op. Att’y Gen. 157, 165 (May 18, 1977). 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). Conclusion Where the Department has confirmed that it does not possess additional records responsive to Attorney Talamo’s request and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. Attorney Talamo is advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 10(A)(c). Sincerely, Manza Arthur Supervisor of Records cc: Rachel Talamo, Esq.