Delay, Delay, Delay

Have a public records story you would like to share? Email with your experience trying to obtain information through a state public records law.

By Colman M. Herman

As I have documented in CommonWealth magazine, the Massachusetts public records law that went into effect in 2017 is no better than the old one. Here’s a story about one of my recent public records requests that turned into a fiasco.

In February, The Boston Globe published a story headlined: “State rebuffed funeral workers’ requests for vaccine doses, but offered them to Office of Chief Medical Examiner staff.”

I was interested in learning what went on behind the scenes. So at the end of March, I filed a public records request with the Office of Chief Medical Examiner Mindy Hull seeking copies of all communications related to the workers in her office getting the COVID-19 vaccine.

The responsive records were due by April 9, 2021. But on April 8, Eric Hogberg, Hull’s chief legal counsel and policy officer, wrote the following to me:

I have been working on your public records request for communications relating to OCME workers getting the vaccine. Due to the voluminous nature of the records I have to review in order to identify responsive records, it is taking significant time. Therefore, I will not be able to produce responsive records within ten business days of your request. I will continue to work on your request and will provide a response as soon as possible.

However, due to the volume of the communications I need to review, I respectfully request an extension of time to respond to your request, up to and including April 27, 2021. Please let me know if you are agreeable to this request.

I immediately agreed to the extension.

But on April 27, 2021 — the day the responsive records were due — Hogberg wrote the following to me:

I wanted to touch base and provide you with an update on your public records request. I have continued to work on your request, and the initial search for the records has been completed, but we are still reviewing/sorting and redacting the voluminous communications for production.

I would appreciate another extension due to the volume of the communications, and because I will be out of the office for a few days this week and next week. I am hoping to have this finalized by May 14th.

I agreed to the second extension.

But on May 14, Hogberg called me and asked for, yes, a third extension. At that point, seven weeks had passed since I had filed my public records request. I had had enough!

So on May 20, I filed an appeal with the Supervisor of Public Records, Rebecca Murray, in the Secretary of State’s office.

On June 1, Murray issued her determination in which she wrote the following to Hogberg:

Where Mr. Herman’s request was submitted on March 26, 2021, and the Office [of the Chief Medical Examiner] has not provided responsive records pertaining to those referenced above, I find [the] Office has not met its burden in responding to the request . . . .

Consequently, I find the Office must provide an estimated date as to when it intends to complete the search and provide the outstanding records. . . . . To the extent possible, the Office must provide responsive records on a rolling basis. . . .

Accordingly, the Office is ordered to provide Mr. Herman with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within five (5) business days.

The five-business-day deadline for the Office of Chief Medical Examiner Mindy Hull to comply with the supervisor’s order was June 8. That was over one month ago, but Hull and her lawyer, Hogberg, have ignored the order and not responded. Meanwhile, the story that I had hoped to write has gone stale.

In other words, the delay, delay, delay tactic of Hull and Hogberg worked.

Colman M. Herman is a freelance writer and reporter living in Boston.

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