Jonathan Gerhardson v. Department of Public Health (SPR 20250272)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 7, 2025 SPR25/0272 Helen Rush-Lloyd Records Access Officer Department of Public Health 250 Washington Street Boston, MA 02108 Dear Ms. Rush-Lloyd: I have received the petition of Jonathan Gerhardson appealing the response of the Department of Public Health (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On December 6, 2024, Mr. Gerhardson requested “a video… an audio recording of the meeting, a diarized transcript of the meeting, draft or not-yet-approved minutes of the meeting” for, “the virtual Dec 3 ORRF council meeting[.]” Prior Appeal This request was the subject of a prior appeal. See SPR25/0029 Determination of the Supervisor of Records (January 13, 2025). In my January 13th determination, I found that the Department must provide an estimated date as to when it intends to complete the search and provide any responsive records. The Department provided a response on January 29, 2025, including records. Unsatisfied with the Department’s response, Mr. Gerhardson petitioned this office and this appeal, SPR25/0272, 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. 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

Helen Rush-Lloyd SPR25/0272 Page 2 February 7, 2025 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 January 29th Response In its January 29, 2025 response, the Department provided records. Current Appeal In his appeal, Mr. Gerhardson states, “I would like to appeal this due to an irregularity in the metadata of the pdf. It was created Jan. 9. I think it is a reasonable assumption then that these minutes were drafted from a recording, which DPH told me did not exist.” Based on Mr. Gerhardson’s appeal, it is unclear if the Department possesses any additional records responsive to the request. Specifically, it is uncertain whether the Department possesses a recording of the December 3rd meeting. 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, the Department must clarify whether any additional records exist. Conclusion Accordingly, the Department is ordered to provide Mr. Gerhardson 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. Mr. Gerhardson may appeal the substantive nature of the Department’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Jonathan Gerhardson