Dawn Oates v. Department of Public Health (SPR 20250537)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 10, 2025 SPR25/0537 Helen Rush-Lloyd Records Access Officer Department of Public Health 250 Washington Street, Second Floor Boston, MA 02108 Dear Ms. Rush-Lloyd: I have received the petition of Dawn Oates 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 January 28, 2025, Ms. Oates requested a “...copy of the Feasibility Study for the Relocation of Pappas Rehabilitation Hospital for Children, which was conducted by the Massachusetts Department of Public Health.” Subsequently, in a February 5, 2025 telephone conference with the Department, Ms. Oates agreed to modify her request to fashion a more focused and cost-efficient request. During that conversation, the Department advised, that the modified request was for, “the Division of Capital Asset Management & Maintenance’s (DCAMM’s) Report, entitled ‘Pappas Rehabilitation Hospital for Children EHS2301: Facility & Program Existing Conditions Assessment’, dated September 27, 2023.” The Department responded on January 28, 2025. Unsatisfied with the Department’s response, Ms. Oates petitioned this office on February 24, 2025 and this appeal, SPR25/0537, was opened as a result. On February 25, 2025, the Department provided a further response, which Ms. Oates appealed. 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). 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 SPR25/0537 Page 2 March 10, 2025 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. Att’y 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 January 28th and February 25th responses In its January 28, 2025 response, the Department stated, “[w]e will be submitting your request to the respective parties and fully expect to fulfill your request in an allotted timeframe.” In its February 25, 2025 response, the Department provided a copy of the Feasibility Study, totaling 358 pages and redacted certain portions of the Study pursuant to Exemption (n) of the Public Records Law. Current appeal In her February 25, 2025 appeal, Ms. Oates states, “...even the report was late, I had to chase it down through your office, and the balance of the request remains outstanding.” Based on the petition, it appears Ms. Oates is not contesting the redactions under Exemption (n) of the Public Records Law. Following Ms. Oates’ appeal, on February 25, 2025, the Department stated, “I have forwarded your email to my colleagues who worked with you on the response to your request. They will follow up with you directly.” Possession, Custody, or Control The Department is 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). Based on the Department’s response, it remains unclear whether the Department possesses any additional records responsive to Ms. Oates’ request. If the Department does possess 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,

Helen Rush-Lloyd SPR25/0537 Page 3 March 10, 2025 including the specific exemption or exemptions upon which the withholding is based”). The Department must clarify this matter. Conclusion Accordingly, the Department is ordered to provide Ms. Oates 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. Ms. Oates may appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Dawn Oates