Dusty Christensen v. Executive Office of Health & Human Services (SPR 20243131)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 4, 2024 SPR24/3131 Hayley Carr, Esq. Assistant General Counsel Executive Office of Health and Human Services One Ashburton Place, 11th Floor Boston, MA 02108 Dear Attorney Carr: I have received the petition of Dusty Christensen, of New England Public Media and The Shoestring, 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 October 22, 2024, Mr. Christensen requested the following: Any communications — including but not limited to emails, their corresponding threads, and attachments — using the keywords “Opvee,” “nalmefene,” or “Indivior” [sic] sent to and/or from Secretary of Health and Human Services ... from Jan. 1, 2024 to present. The Office responded on November 5, 2024. Unsatisfied with the Office’s response, Mr. Christensen petitioned this office, and this appeal, SPR24/3131, 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. SPR24/3131 Page 2 December 4, 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 November 5th Response In its November 5, 2024 response, the Office states the following: EOHHS continues to process your request to gather potentially responsive records. EOHHS is unable to provide a complete response by November 5, 2024. Pursuant to G.L. c. 66 § 10(b)(vi), EOHHS estimates a response will issue by November 13, 2024 (15 business days after PRR receipt). In his appeal petition, Mr. Christensen states that he has been “waiting 18 business days to receive a public records response from the Executive Office of Health and Human Services.” He further explains that “[t]o date, the EOHHS has yet to respond to [his] initial request, which [he] sent on Oct. 22, 2024.” Timeframe for Providing Records The Office is advised that 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 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. Christensen submitted his request on October 22, 2024, and the Office has not provided responsive records, nor cited an exemption for withholding records, I find the Office has not met its burden in responding to the request in accordance with G. L. c. 66, § 10(b). Consequently, the Office 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 Office must provide responsive records on a rolling basis.

Hayley Carr, Esq. SPR24/3131 Page 3 December 4, 2024 Conclusion Accordingly, the Office is ordered to provide Mr. Christensen 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: Dusty Christensen