Carbonaro, Allison v. Department of Public Health (SPR 20261016)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 2, 2026 SPR26/1016 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 Allison Carbonaro Esq., appealing the response of 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 January 8, 2026, Attorney Carbonaro requested, [1] All records referencing or related to DPH’s facilitation of assistance with public benefits applications, including but not limited to the Women, Infants, & Children (“WIC”) Nutrition Program, for patients at Public Hospitals[;] [2] All records referencing or related to DPH’s facilitation of assistance with patient voter registration at Public Hospitals or compliance with the NVRA, 52 U.S.C. §§ 20501, et seq.[;] [3] All records referencing or related to DPH’s tracking, monitoring, documentation, and reporting of assistance with patient voter registration at Public Hospitals[;] [4] All records referencing or related to information made available in Public Hospitals by DPH regarding voter registration assistance[;] [5] All records referencing or related to DPH’s training for staff at Public Hospitals who assist clients with public benefits applications, renewals, recertifications, and change of address processes, including but not limited to the WIC Nutrition Program, regarding assistance with patient voter registration at Public Hospitals or compliance with the NVRA[.] The Department responded on February 2, 2026. Unsatisfied with the response, Attorney Carbonaro petitioned this office and this appeal, SPR26/1016, 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 SPR26/1016 Page 2 April 2, 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(d)(iv) (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…”); 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). 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 February 2nd Response In its February 2, 2026 response, the Department stated, “[a]fter a thorough review, no records exist that are responsive to your request. This is outlined in detail in the attached letter. Unless anything additional is needed, we are considering this Public Record Request closed.” Current Appeal In her appeal, Attorney Carbonaro states the following: [1] DPH’s assertion is difficult to credit as a matter of logical necessity. The request concerns activities that would reasonably generate documentary records in the normal course of agency operations, and under 950 CMR 32.03(4), records sought from a government entity are presumed public records unless that presumption is rebutted. DPH has not done so here. For example, where patients at the Public Hospitals apply for public benefits, there necessarily should exist some form of benefit application materials. DPH’s bare assertion that no such records exist raises substantial doubt as to whether it conducted an adequate search[;] [2] DPH appears to have interpreted the request in an unduly narrow manner. Its response addresses only WIC-related materials, notwithstanding that the request expressly used the phrase “including but not limited to” WIC. To the extent DPH believed the request was unclear or required modification, the regulations impose

Helen Rush-Lloyd SPR26/1016 Page 3 April 2, 2026 an affirmative obligation on the Records Access Officer to assist the requester in identifying the records sought and, where appropriate, to suggest a reasonable modification of the scope of the request. See 950 CMR 32.04(5)(b); 950 CMR 32.06(2)(g). No such assistance was offered here. An agency may not unilaterally narrow a request and then rely on that narrowed interpretation to claim that no responsive records exist[;] [3] DPH’s response does not describe the search methodology employed—it does not identify the locations searched, the custodians consulted, or the electronic or physical systems reviewed. The regulations impose an affirmative duty of a thorough, good-faith search. See 950 CMR 32.04(5)(a); 950 CMR 32.06(2)(a). A response that provides no account of the search conducted cannot demonstrate compliance with these requirements[;] [4] Regulations require that a written denial identify any other agency that may be in possession, custody, or control of the records sought, to the extent known. See 950 CMR 32.06(3)(c)(3). DPH’s response makes no such identification, although there are other agencies that are likely to have these records[.] Records in Existence 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). Further, 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 Attorney Carbonaro’s appeal, it is unclear whether the Department possesses any records responsive to the request. If the Department does possess responsive records, it must either provide the records, or cite an exemption to the Public Records Law, and explain with specificity how such an exemption applies to withhold or redact the records. 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. Conclusion Accordingly, the Department is ordered to provide Attorney Carbonaro 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.

Helen Rush-Lloyd SPR26/1016 Page 4 April 2, 2026 Sincerely, Manza Arthur Supervisor of Records cc: Allison Carbonaro, Esq.