Brian McCarter v. Boston Public Health Commission (SPR 20252164)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 1, 2025 SPR25/2164 Javier Salas, Esq. Assistant General Counsel Boston Public Health Commission 1010 Massachusetts Avenue Boston, MA 02118 Dear Attorney Salas: I have received the petition of Brian McCarter appealing the response of the Boston Public Health Commission (Commission/BPHC) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 5, 2025, Mr. McCarter requested: Records reflecting the total number of needles or syringes distributed by the Boston Public Health Commission or any BPHC-operated, BPHC-funded, or BPHC-affiliated programs, contractors, or grantees from January 1, 2018 through December 31, 2024. This includes distribution through: [1] AHOPE (Access, Harm Reduction, Overdose Prevention and Education) [2] Community Care in Reach (CCiR) [3] Public Health Vending Machines [4] Mobile health units [5] Harm reduction outreach teams [6] Any other BPHC-sponsored distribution or syringe access initiatives. Examples of responsive documents may include: [1] Annual or monthly summary reports [2] Internal BPHC program dashboards or spreadsheets, tracking tools [3] Reporting forms from contractors or partners [4] Aggregate outreach data (e.g., from AHOPE, CCiR) [5] Grant reporting documentation [6] Email attachments with syringe count data [7] Invoices or procurement logs reflecting distributed quantities 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

Javier Salas, Esq. SPR25/2164 Page 2 August 1, 2025 [8] Internal communications or memos comparing distribution to collection The Commission responded on June 9, 2025, June 23, 2025, and July 14, 2025. Unsatisfied with the Commission’s responses, Mr. McCarter petitioned this office and this appeal, SPR25/2164, was opened as a result. While this appeal was pending, the Commission provided a supplemental response on July 30, 2025. 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 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 Commission’s June 9th, June 23rd, and July 14th Responses On June 9, 2025, the Commission confirmed receipt of the request, and on June 23, 2025, the Commission stated that it would need a “15 additional day extension” to respond to the request. In its July 14, 2025 response, the Commission provided responsive documents and stated: As a threshold matter, the BPHC maintains this request is vague and ambiguous, overbroad, and unduly burdensome because it is unclear what specific record you seek. While your request seeks “[r]ecords reflecting the total number of needles or syringes distributed by Boston Public Health Commission…,” the example[s] of records you cite, do not illicit [sic] that response. As such, the BPHC, through its Record Access Officer’s reasonable judgement, has interpreted your request as a request for records showing BPHC’s total needle / syringe distribution numbers. Copies of all records responsive to your request that are within the BPHC’s possession, custody, or control are enclosed. Please note, the responsive record

Javier Salas, Esq. SPR25/2164 Page 3 August 1, 2025 contains data only from 2020 to current as the needle / syringe distribution data for all BPHC and affiliate programs. Prior to 2020, needle / syringe distribution data was only kept by Access, Harm Reduction, Overdose Prevention, and Education (“AHOPE”). Please see attached AHOPE’s distribution data from 2018-2019. Please also note, some records regarding syringe distribution in the City of Boston are not within the possession, custody, and control of the BPHC, and may be controlled by other organizations such as the Boston Health Care for the Homeless Program (BHCHP) and the Community Care in Reach (CCiR) program during this time. Current Appeal In his appeal petition, Mr. McCarter argued that the Commission’s response is deficient for the following reasons: [1] Partial production confirms the request was not vague... [2] Specific, clearly-requested record types were not provided… [3] Incomplete search… In its supplemental responses on July 30, 2025, the Commission stated: It is the BPHC’s position that, as written, Mr. McCarter did not request the records he listed under “Examples of responsive documents may include,”… Mr. McCarter could have drafted a request… stating in clear, precise, obligatory language that he desired to have all records listed as examples to be produced as is required by the law. Friedman v. Div. of Admin L. Appeals… Instead, Mr. McCarter sought one specific type of record, which showed the total BPHC’s needle / syringe distribution numbers spanning a total of six (6) years), and this BPHC provided… [T]his request must be dismissed as it is unreasonable and contradicts the requirements under the Massachusetts Public Records Law. Please be advised that in Friedman v. Division of Administrative Law Appeal and Bureau of Special Education Appeals, the Suffolk Superior Court, in its Memorandum of Decision and Order on Defendants’ Motion to Dismiss, stated: [The requester] has a right to seek public records from his government, provided he does so in a reasonable manner. [The agencies], in turn, have a right not to be inundated with drain-the-ocean records requests, provided they fulfill the basic expectations of the [Public Records Law] in a fair and transparent manner. See Friedman v. Division of Administrative Law Appeal and Bureau of Special Education Appeals, Suffolk Sup. No. 2284CV02061-C, at 3 (February 14, 2023). The Court in Friedman noted, “the extraordinary volume of records called for in this case has compelled the Defendants to produce responsive materials in a ‘rolling’ fashion, rather than in accordance with deadlines contemplated by the [Public Records Law].” Id. at 1.

Javier Salas, Esq. SPR25/2164 Page 4 August 1, 2025 In addition, please be aware that the request must reasonably describe the specific records sought. See G. L. c. 66, § 10(a)(i). In a recent case, the Superior court found that under the Public Records Law “[t]he reasonable description requirement contemplates that a requesting party will identify documents or categories of documents with sufficient particularity that government employees will be able to understand exactly what they are looking for, and then make a prompt production.” See Jaideep Chawla v. Dept of Revenue, Suffolk. Sup. No. l 784CV02087, at 2 (January 23, 2019). This office encourages the requestor and the Commission to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii) (a municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the municipality to produce the records sought more efficiently and affordably). Conclusion If outstanding issues remain after Mr. McCarter and the Commission communicate further as described above, Mr. McCarter may file an appeal within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Brian McCarter