Grace Ferguson v. Department of Public Health (SPR 20253118)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 3, 2025 SPR25/3118 Helen Rush-Lloyd Records Access Officer Department of Public Health, Second Floor 250 Washington Street Boston, MA 02108 Dear Ms. Rush-Lloyd: I have received the petition of Grace Ferguson 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 August 1, 2025, Ms. Ferguson requested: …the following records for nursing homes and rest homes in New Bedford, Massachusetts since January 1, 2020: - Complaints (in spreadsheet format if available) - Complaint investigation reports - Inspection reports - Documentation of how deficiencies are resolved… - Cost reports[.] Following correspondence between Ms. Ferguson and the Department, Ms. Ferguson modified her request on August 12, 2025 to seek: [1] A spreadsheet of complaints and incidents along the lines [the Department] described[;] [2] Deficiency reports for rest homes. On August 14, 2025, following further correspondence, Ms. Ferguson modified Item 2 of her August 12th modified request as follows: I would like to narrow my request for SODs/POCs to the following: 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 SPR25/3118 Page 2 November 3, 2025 - Nursing homes: Only deficiency reports generated as a result of surveys conducted for state licensure needs (excluding reports sent to CMS)[;] - Rest homes: No change. Please provide SODs/POCs within the scope of my original request. The Department responded on August 15, 2025, August 25, 2025, August 26, 2025, September 11, 2025, September 12, 2025, September 16, 2025, and October 8, 2025. Unsatisfied with the Department’s responses, Ms. Ferguson petitioned this office and this appeal, SPR25/3118, 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. 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 Responses In its August 15, 2025 response, the Department stated, “[t]his will likely be a rolling production as the SODs/POCs may be produced before the completion of the spreadsheet. For a due date, please expect the first production around September 12th.” On August 25, 2025, in response to a question about the contents of the responsive records, the Department asked Ms. Ferguson to provide an example “of what is online and what might be missing.” After receiving an example from Ms. Ferguson, the Department responded on August 26, 2025, “I have asked the public records team to update your request… Given the review process, it is difficult to provide a timeframe, but we are working to get this through the review process as quickly as possible.”

Helen Rush-Lloyd SPR25/3118 Page 3 November 3, 2025 On September 11, 2025, following an update inquiry from Ms. Ferguson, the Department stated, “I have asked for a status update on your public record request. It’s currently going through the review process. As soon as I hear back, I will be in touch.” Following a second update inquiry from Ms. Ferguson, the Department responded on September 12, 2025, “[t]he public records request remains under review. As soon as it is approved, it will be emailed to you.” On September 16, 2025, Ms. Ferguson asked whether a specifically identified record would be included with the responsive records. The Department responded the same day, “I will check with the public records team and get back to you…” After two further emails from Ms. Ferguson seeking updates regarding the request, the Department responded on October 8, 2025, “[t]his public record request… remains in the administrative review process.” Current Appeal In her appeal petition, Ms. Ferguson stated, “[t]he department has not provided any records in response to this request, despite proposing a rolling production schedule that would have begun on September 12, 2025.” Timeliness in Providing Records G. L. c. 66, § 10(b) provides, in pertinent part, that if the magnitude or difficulty of the request unduly burdens the other responsibilities of the agency or municipality such that the agency or municipality cannot provide records within 10 business days, the agency or municipality must inform the requestor in writing within 10 business days. With respect to the timeframe to produce responsive records, the written response shall: identify a reasonable timeframe in which the agency or municipality shall produce the public records sought; provided, that for an agency, the timeframe shall not exceed 15 business days following the initial receipt of the request for public records and for a municipality the timeframe shall not exceed 25 business days following the initial receipt of the request for public records; and provided further, that the requestor may voluntarily agree to a response date beyond the timeframes set forth herein. G. L. c. 66, § 10(b)(vi). Where Ms. Ferguson’s request was modified on August 14, 2025, and the Department has not provided responsive records, nor cited an exemption for withholding records, I find the Department has not met its burden in responding to the request in accordance with G. L. c. 66, § 10(b)(vi). Accordingly, I find the Department must provide an estimated date as to when it expects to complete its review and provide the requested records. See G. L. c. 66, § 10(a)

Helen Rush-Lloyd SPR25/3118 Page 4 November 3, 2025 (records must be provided without unreasonable delay). To the extent possible, the Department must provide responsive records on a rolling basis. Conclusion Accordingly, the Department is ordered to provide Ms. Ferguson 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. Ferguson 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: Grace Ferguson