Jonathan Gerhardson v. Department of Public Health (SPR 20250284)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 11, 2025 SPR25/0284 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/DPH) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 16, 2024, Mr. Gerhardson requested the following: As I understand it the deadline for municipalities to submit reports on how they have spent any opioid settlement funds in FY2024 is October 30, but some reports may have already been submitted. I am seeking to obtain reports for either all reporting municipalities, or at least all municipalities receiving more than $35k. ... Previous Appeal This request was the subject of a previous appeal. See SPR24/2983 Determination of the Supervisor of Records (November 15, 2024). In my November 15th determination, I ordered the Department to clarify whether the records of its agents were searched. Subsequently, the Department responded on January 30, 2025. Unsatisfied with the Department’s response, Mr. Gerhardson petitioned this office, and this appeal, SPR25/0284, 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 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 SPR25/0284 Page 2 February 11, 2025 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 January 30th Response In its January 30, 2025 response, the Department provided “the raw data that has been submitted by municipalities in connection with the annual Municipal Expenditure Report” along with a file that “contains contact information for the information officers that are listed on the dashboard and were assigned by each municipality to respond to questions/comments that relate to opioid abatement funds.” The Department also explains that “the data has also been published in navigable dashboard that is located at [a linked website].” Current Appeal In his appeal petition, Mr. Gerhardson contends that: [T]here are issues with timestamps on these files that indicate they are not the records I requested. I asked for the data submitted to the state by municipalities. Data in the attached csv file was modified as late as a few days ago in the provided data. These same fields existed in the November version I scraped.... And where are the originals? In an email to this office and the Department subsequent to the opening of this appeal, Mr. Gerhardson further argues the following: Some fields are incomplete. For example cell JQ,297 contains “Met with Gosnold who is moving its headquarters to Wareham. Starting a prevention and interaction program. This will focus specifically on Wareham residents who have been impacted by opioids including people in recovery, addicts and families impacted by t” Clearly, this was cut off mid-word. Additionally, many fields have very little context for what information they

Helen Rush-Lloyd SPR25/0284 Page 3 February 11, 2025 contain. Column QR “RECORDTYPEID” for example. You’d think that “012Hu000001DnADIA0” is some unique identifier, except that’s what is in every cell. Records in Existence; Possession, Custody, or Control Please be advised that 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). Further, in accordance with the Public Records Law, 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). Based on the Department’s response, and the information provided in Mr. Gerhardson’s appeal petition, it is unclear whether the Department possesses additional records responsive to Mr. Gerhardson’s request. If the Department does possess additional responsive records, it must either provide the records, or cite an exemption to the Public Records Law, and explain with specificity how such an exemption applies to withhold or redact the records. See G. L. c. 66, § 10(b)(iv) (a written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based”). 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. Sincerely, Manza Arthur Supervisor of Records cc: Jonathan Gerhardson