COFAR blog

We have been trying for months to get records from the Baker administration about its policies and practices for protecting people with developmental disabilities from COVID-19.

Not only have we largely been unsuccessful in prying what should be public information from three state agencies, but even Rebecca Murray, the state’s public records supervisor, has been unsuccessful in extracting that information on our behalf.

The public records supervisor heads a division within the office of Secretary of the Commonwealth Bill Galvin, which is charged with enforcing the state’s Public Records Law.

Since July, we have filed several appeals to Murray for records from the Executive Office of Health and Human Services (EOHHS) and the Departments of Developmental Services (DDS) and Public Health (DPH). Those agencies have either denied our requests for the records, given us contradictory indications as to whether they have the records, or simply failed to respond to our requests.

Murray has subsequently issued several orders to the agencies either to provide records to us or clarify whether those agencies have the records we’re seeking. But it appears these agencies either feel free to ignore Murray’s orders or to slow-walk their compliance as much as possible. Since the end of July, they have shown few if any signs of compliance.

It isn’t clear what Murray is going to do about it. Yet it is a basic tenet of democracy that government follow the Public Records Law.

At this point, we have four outstanding public records requests to the three agencies, and the agencies have failed to comply with Murray’s orders in at least three of those cases. In the fourth case, which involves our request for information on the causes of deaths in the DDS system since January, we believe the Department is misinterpreting the law in denying us that information.

In nearly all of these cases, it has been so many weeks or even months since we first asked for the records that fast-changing circumstances involving the COVID pandemic have made many, if not most, of the records we might receive out of date.

The following are our outstanding records requests, and what has transpired with them so far:

Records on mandatory testing of staff in the DDS system 

On May 26, we first requested internal emails and other records from EOHHS, DPH, and DDS regarding mandatory testing of staff in the DDS system for COVID-19. To date, more than three months later, we have not received any records from any of those agencies.

We first appealed to Murray on July 14 regarding EOHHS, which gave us contradictory responses as to whether it possesses emails responsive to our request. On July 24, Murray issued an order to EOHHS to clarify whether it does possess the emails. To date, more than a month after Murray’s order, we have received no response from EOHHS in compliance.

Meanwhile, given the amount of time since we first asked for those internal communications, the situation involving mandatory staff testing has changed. In mid-August, EOHHS issued a directive requiring testing of all staff.

Given the amount of time that has passed since our May 26 records request, it does not appear likely that the records — if we ever do receive them — would cover the period of time in which the administration made the decision to issue the mandatory testing directive. But if and when we file a new request for updated records, who knows if we will get those either.

As noted, we received conflicting indications from EOHHS and later DPH as to whether they possessed the emails we were seeking.

In early June, an EOHHS official responded to us only to say that our request was so broad, it would result in a voluminous number of emails, and the agency would have to bill us an undetermined amount to retrieve and evaluate the records for release. As a result, on June 9, we we offered, at EOHHS’s request, to narrow our request to emails solely among EOHHS Secretary Mary Lou Sudders and her executive team, and sent during a two-month time-frame from April through June.

However, more than a month after we made our offer, EOHHS stated that they now could find zero responsive emails to our narrowed request.

In her July 24 decision, Murray ordered EOHHS to clarify whether they possessed any records responsive to our request, and to respond to our request “as soon as practicable.” To date, as noted, we have received no communication from EOHHS.

On August 13, we also appealed to Murray for help in getting similar records from both DDS and DPH regarding mandatory staff testing.

DPH also had responded to us, on June 17, that they had identified 2,762 emails as being potentially responsive to our request, and that it would cost us $1,626 to provide them. On June 18, the next day, we similarly offered to narrow our request in order to avoid that large a charge for the documents. To date, more than two months later, we have not received a response to our offer from DPH.

We never received any response from DDS to our May 26 records request, other than a notice on June 9 that the Department needed an additional five days to provide a response. That response never came.

On September 2, Murray ordered both DPH and DDS to respond to us within 10 business days with either a response to our June 18 offer to narrow our request, in DPH’s case, or a response to our original May 26 request, in DDS’s case.

Request for contract documents concerning Fallon Ambulance Service for COVID-19 testing 

On June 16, we requested records from EOHHS concerning Fallon Ambulance Service’s contract to test for COVID-19 in the DDS system.

EOHHS responded a month later — on July 15 — with no records other than the contract itself. In response to a portion of our request, which was for records of state payments made to Fallon, EOHHS directed us to an online database maintained by the state comptroller. That database, however, did not clearly identify payments to the company.

On July 28, after fruitless efforts to get EOHHS to clarify its response, we appealed to Murray, who ordered EOHHS on August 10 to provide reasonable assistance to us in locating the payments to Fallon. To date, we have received no communication from EOHHS in compliance with that order.

Request for records relating to EOHHS Weekly State Facility reports on COVID-19 

On June 25, we requested documents from EOHHS, DPH, and DDS concerning changes made to the presentation of COVID-19 data in online Weekly State Facility reports. We wanted to find out whether top administration officials had discussed changes that were made in late June to limit the information contained in the public reports.

On July 16 and July 28, we appealed the non-responses of all three agencies to those records requests. DPH and DDS subsequently stated that they possessed no responsive documents.

EOHHS did produce documents on July 31 — which is the last time we heard from them — partially responding to our records request. But we reinstated our appeal on August 4, arguing that the EOHHS response was incomplete. The agency clearly appears to have additional records that they did not provide.

Based on the limited records we did receive from EOHHS, we reported that top officials of the agency had indeed discussed reducing the information contained in the weekly online reports.

On August 18, Murray issued a decision in our appeal, stating that it was unclear whether EOHHS does possess additional responsive records, and ordering the agency to clarify that matter to us, once again, “as soon as practicable.” To date, we have received no further communications from EOHHS.

Records on deaths in DDS system

On July 9, we requested records from DDS on causes of death regarding all residents of group homes and other residential facilities in the DDS system since January 1 of this year. We wanted to determine the percentage of total deaths that have been attributed to COVID-19.

On July 23, DDS denied our request, citing, among other statutes, an exemption to the Public Records Law for “medical files or information.” We appealed, arguing that DDS is interpreting the exemption in a broader manner than it was intended or plainly states. The exemption specifically states that it pertains to:

…personnel and medical files or information; also any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy; (my emphasis)