Bill Shein v. Department of Public Health (SPR 20253418)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 4, 2025 SPR25/3418 Helen Rush-Lloyd Records Access Officer Massachusetts Department of Public Health 250 Washington Street Boston, MA 02108 Dear Ms. Rush-Lloyd: I have received the petition of Bill Shein, of The Berkshire Argus, 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 8, 2025, Mr. Shein requested the following: ... copies of public records related to two federally funded biomonitoring initiatives administered by the Massachusetts Department of Public Health (DPH). These grants were awarded by the U.S. Centers for Disease Control and Prevention (CDC) [1] CDC Biomonitoring Grant (2014–2019/2021)[;] Including but not limited to: Grant Opportunity #CDC-RFA-EH14-1402 Grant Award ID # NU88EH001144 Cooperative Agreement #5 U88 EH 001144 Please provide for the entire life of the award: [1] The grant application and all related documents, including submissions, attachments, correspondence, and award letters[;] [2] Budget documents (proposed, approved, and amended)[;] [3] Progress, interim, and final reports[;] [4] Presentations, published or unpublished findings, and summaries prepared for public or internal use[;] [5] Internal DPH memos, meeting notes, and correspondence discussing the design, implementation, evaluation, data interpretation, or public communication plans[;] 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 SPR25/3418 Page 2 December 4, 2025 [6] Outreach materials for participants and collaborators, including templates for results communication to participants, welcome packages, and questionnaires [7] Technical and other resources used for health-based interpretation of Biomonitoring results[;] [8] Materials related to the establishment of health-based thresholds for analytes of interest[;] [9] Materials related to responses under the grant to drinking water concerns including manganese in municipal drinking water[;] [10] Any data summaries or de-identified public-use datasets generated by this project, including but not limited to number/geographic location of participants in the study’s three groups: “residents in communities with a high risk of potential exposure to certain chemicals, individuals involved in a chemical emergency, and adults (18+) across the state.” [11] Communications with CDC or other partners regarding the project[.] [12] CDC Biomonitoring Grant (2024–2027)[;] Including but not limited to: Grant Opportunity # CDC-RFA-EH-24-0043 Grant ID #NU88EH001345 This ongoing grant appears to support the Mass Measures program, which offers free blood and urine testing for environmental contaminants, including PCBs, in selected Massachusetts communities. Please provide the following, to date:  The full grant application and all attachments submitted[;]  Drafts, redlines, memos, correspondence, and other material related to the preparation of the grant application[;]  Funding award letters and other communications from to/from HHS/CDC[;]  Budget documents (proposed, approved, and amended)[;]  Internal DPH documents—including memos, correspondence, and presentations— planning and outlining the scope, design, and/or goals of the Mass Measures program[;]  Criteria, memos, spreadsheets, scoring, correspondence, and any other material related to the selection of participating sites/communities[;]  Outreach materials, community meeting summaries, press releases, and any Data summaries produced to date[;]  Draft and final exposure-assessment questionnaire(s) and any results report template(s)[;]  Correspondence among and between DPH staff as well as external parties (e.g., CDC, municipalities, local/state/federal officials, researchers, contractors, advocacy groups, and local partners) related to this program to date[.]

Helen Rush-Lloyd SPR25/3418 Page 3 December 4, 2025 Prior Appeal This request was the subject of a prior appeal. See SPR25/2743 Determination of the Supervisor of Records (September 24, 2025). In my September 24th determination, I learned that the Department sent a supplemental response to Mr. Shein. The Department responded on November 12, 2025. Unsatisfied with the Department’s response, Mr. Shein petitioned this office and this appeal, SPR25/3418, 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. Current Appeal In his appeal, Mr. Shein states, “[t]his appeal concerns the substantive shortcomings of DPH’s still-ongoing response and incomplete records production, notably its overbroad application of various exemptions available under the public-records law.” The Department’s November 12th Response In its November 12, 2025 response, The Department stated, In the first production issued on September 23, 2025, DPH produced 42 records responsive to this request, nothing was withheld or redacted from the first production. Enclosed with this letter are two records (104 pages) responsive to your request. These records consist of the Year 1 Biomonitoring Grant Application and Year 2 Biomonitoring Grant Application, nothing has been withheld or redacted from the second production.

Helen Rush-Lloyd SPR25/3418 Page 4 December 4, 2025 In its response, the Department cited Exemptions (a) and (d) of the Public records Law to withhold some of the requested records. Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7(26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public’s right to inspect records under the Public Records Law is restricted. See Att’y Gen. v. Collector of Lynn, 377 Mass. 151, 154 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either “shall not be a public record,” “shall be kept confidential” or “shall not be subject to the disclosure provision of the Public Records Law.” The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. In its response, the Department cites G. L. c. 111, § 24A, which states in pertinent part as follows: All information, records of interviews, written reports, statements, notes, memoranda, or other data procured in connection with such scientific studies and research conducted by the department, or by other persons, agencies or organizations so authorized by the commissioner shall be confidential and shall be used solely for the purposes of medical or scientific research. G. L. c. 111, § 24A. In its response, the Department states that records responsive to Items 6, 7, 8, 9 and 10 of the request are exempt pursuant to Exemption (a) and specifically, G. L. c. 111, § 24A.

Helen Rush-Lloyd SPR25/3418 Page 5 December 4, 2025 Based on the Department’s response, it is unclear what records the Department possesses that are responsive to Items 6, 7, 8, 9 and 10 of the request, and how the statute applies to withhold the records from disclosure. 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”). The Department must clarify this matter. Exemption (d) Exemption (d) allows the withholding of: inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this subclause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based G. L. c. 4, § 7(26)(d). Exemption (d) is intended to avoid premature release of materials that could taint the deliberative process if disclosed. Its application is limited to recommendations on legal and policy matters found within an ongoing deliberative process. See Babets v. Sec’y of the Exec. Office of Human Servs., 403 Mass. 230, 237 n.8 (1988). Factual reports which are reasonably complete and inferences which can be drawn from factual investigations, even if labeled as opinions or conclusions, are not exempt as deliberative or policy making materials. G. L. c. 4, § 7(26)(d); see also Envtl. Prot. Agency v. Mink, 410 U.S. 73, 89 (1973) (purely factual matters used in the development of government policy are subject to disclosure). In its response, the Department indicates, “... please note that information regarding ongoing biomonitoring studies is exempt from disclosure pursuant to G. L. c. 4, § 7 (26)(d) in order to protect the integrity of policies under development relating to these studies.” The Department is advised that any information contained in these records that is factual in nature may be subject to disclosure, as Exemption (d) does not apply to such information. Consequently, the Department must clarify whether the records contain any factual information that can be segregated. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. See G. L. c. 66, § l0(a). Further, I find the Department has not established how the records at issue are “inter- agency or intra-agency memoranda or letters” as required by Exemption (d). See DOI v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 4 (2001) (indicating that a requirement for Freedom of Information Act (FOIA) exemption 5 to apply is “its source must be a Government agency”); Cty. of Madison v. United States Dep’t of Justice, 641 F.2d 1036, 1040 (1st Cir. 1981) (finding that documents from a private party are not “intra-agency” under FOIA exemption 5); SPR95/336 Determinations of the Supervisor of Records (August 14, 1995; August 31, 1995)

Helen Rush-Lloyd SPR25/3418 Page 6 December 4, 2025 (finding that Exemption (d) does not protect materials submitted to an agency by third parties and only applies to governmental agencies or consultants). The Department must clarify these matters. Further, based on the Department’s response, it is unclear what types of records it possesses that it is withholding from disclosure. To deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3)(c)(4). Here, the Department withheld responsive records without identifying each of the records. Therefore, the Department must identify the record(s) it has in its possession that the Department withheld under Exemptions (a) and (d) of the Public Records Law. Conclusion Accordingly, the Department is ordered to provide Mr. Shein with a response to the 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. Mr. Shein 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: Bill Shein