Kent, Michael v. Department of Public Health (SPR 20260215)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 5, 2026 SPR26/0215 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 Michael Kent 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 19, 2025, Mr. Kent requested the following records: [1] The complete independent security assessment report for Tewksbury Hospital prepared by [an identified individual] (and any associated retired Massachusetts State Police officers) that was commissioned by the Department of Public Health in or around March 2024, including but not limited to: the final report, any draft versions, appendices, findings, recommendations, cover letters, and transmittal correspondence. [2] All records reflecting the cost or compensation paid for the above assessment, including but not limited to: • the contract, purchase order, or professional services agreement with [an identified individual (or any entity he represented), • invoices, • payment vouchers, • total amount paid, • hourly rates (if applicable), and • any amendments or change orders. The Department responded on December 10, 2025 and December 18, 2025. Unsatisfied with the Department’s responses, Mr. Kent petitioned this office and this appeal, SPR26/0215, was opened as a result. 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 SPR26/0215 Page 2 February 5, 2026 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. Kent states, “[t]his appeal is limited solely to records reflecting the cost of the project.” The Department’s December 10th and December 18th Responses In its December 10, 2025 response, the Department requested an extension. In its December 18, 2025 response, the Department assigned reference number HOSPITAL 2025-24 to the request, and cited Exemption (n) of the Public Records Law to withhold the requested records. Exemption (n) Exemption (n) permits the withholding of: records, including, but not limited to, blueprints, plans, policies, procedures and schematic drawings, which relate to internal layout and structural elements, security measures, emergency preparedness, threat or vulnerability assessments, or any other records relating to the security or safety of persons or buildings, structures, facilities, utilities, transportation, cyber security or other infrastructure located within the commonwealth, the disclosure of which, in the reasonable judgment of the record custodian, subject to review by the supervisor of public records under subsection (c) of section 10 of chapter 66, is likely to jeopardize

Helen Rush-Lloyd SPR26/0215 Page 3 February 5, 2026 public safety or cyber security. G. L c. 4, § 7(26)(n). Exemption (n) allows for the withholding of certain records which if released would jeopardize public safety. The first prong of Exemption (n) examines “whether, and to what degree, the record sought resembles the records listed as examples in the statute;” specifically, the “inquiry is whether, and to what degree, the record is one a terrorist would find useful to maximize damage.” PETA, 477 Mass. at 289-90. The second prong of Exemption (n) examines “the factual and contextual support for the proposition that disclosure of the record is ‘likely to jeopardize public safety.’” Id. at 289-90. The PETA decision further provides that “[because the records custodian must exercise ‘reasonable judgment’ in making that determination, the primary focus on review is whether the custodian has provided sufficient factual heft for the supervisor of public records or the reviewing court to conclude that a reasonable person would agree with the custodian’s determination given the context of the particular case.” Id. PETA also provides that “[t]hese two prongs of exemption (n) must be analyzed together, because there is an inverse correlation between them. That is, the more the record sought resembles the records enumerated in exemption (n), the lower the custodian’s burden in demonstrating ‘reasonable judgment’ and vice versa.” PETA, at 290. In its response, the Department states, “. . . [t]he Department has withheld information on the complete independent security assessment report for Tewksbury Hospital prepared by [an identified individual] pursuant to G. L. c. 4, § 7(26)(n) (hereinafter referred to as ‘Exemption (n)’... Public disclosure of the security assessment may allow members of the public to access areas of restriction and in the reasonable judgment of the Department, would be likely to jeopardize public safety.” Based on the Department’s response, in conjunction with Mr. Kent’s appeal, it is unclear how “. . . records reflecting the cost or compensation paid for the above assessment[,]” can be withheld under Exemption (n). Particularly, it is unclear how the records resemble the types of records listed in the statute, nor how the information is one a terrorist would find useful to maximize damage. PETA, 477 Mass. at 289. Where the records bear little resemblance to the types listed in the statute, the burden on the custodian is correspondingly at its highest. See id. at 290-91. Further, I find that the Department’s has not provided “sufficient factual heft” to conclude that a reasonable person would agree that disclosure of the records is “likely to jeopardize public safety or cyber security” as required by Exemption (n). Id. at 290-91. The Department must clarify these matters. Conclusion Accordingly, the Department is ordered to provide Mr. Kent with a response to the request, provided in a manner consistent with this order, the Public Records Law and its

Helen Rush-Lloyd SPR26/0215 Page 4 February 5, 2026 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. Mr. Kent 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: Michael Kent