Teresa Consentino v. Department of Public Health (SPR 20250558)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 10, 2025 SPR25/0558 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 Teresa Consentino 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 November 15, 2024, Ms. Consentino requested, “the results of the complaints that were filed in April 2024 regarding named patients’ investigation at the Hannah Dustin Rehabilitation Center, Haverhill MA.” The Department responded on December 3, 2024, providing records responsive to the request. Unsatisfied with the Department’s response, Ms. Consentino appealed, and this case, SPR25/0558, 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. 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. 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 SPR25/0558 Page 2 March 10, 2025 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 December 3rd response In its December 3, 2024 response, the Department states, “[e]nclosed are the records (23 pages) responsive to your request, the production of which completes DPH’s response to your request. The Department has not withheld or redacted any documents from this response.” Current Appeal In her appeal to this office, Ms. Consentino states: I am also appealing the response from the Department of Public Records as it does not provide much information and what it did provide was inaccurate…. I want to know if a doctor was consulted or a supervisor that morning and day. I want to know … why the charge nurse did not call the ambulance. I want to know when the ambulance finally came, why they resisted taking him to the ER. Finally, I want to know why I was not informed as his health care proxy and power of attorney. 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). Additionally, under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). However, 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 information provided in Ms. Consentino’s appeal petition, it is unclear whether the Department possesses additional responsive records. The Department must clarify this. Conclusion Accordingly, the Department is ordered to provide Ms. Consentino with a response to her request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten 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.

Helen Rush-Lloyd SPR25/0558 Page 3 March 10, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Teresa Consentino