Smith, Erin v. Department of Children and Families (SPR 20140042)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords February 13, 2014 SPR14/042 Ms. Erin Smith The Boston Herald 70 Fargo Street Boston MA 02210 Dear Ms. Smith: I have received your petition appealing the response of the Department of Children and Families (DCF) to your request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, you requested copies of records related to persons listed on the Registry of Alleged Perpetrators at DCF. DCF General Counsel Virginia A. Peel denied your request, citing several statutes that operate under Exemption (a) of the Public Records Law. Under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. It appears from a review of the file that DCF tumed your questions into requests for records that would respond to those questions. While a records custodian is encouraged to respond to questions, such responses are outside the purview of my authority as Supervisor ofRecords. Requests # 1 and # 2 In her written response Attomey Peel condensed your queries into four requests. Attomey Peel denied Requests # 1 and# 2, related to a Registry of Alleged Perpetrators, citing a variety of state and federal statutes, along with state regulations to support her contention that the requested records are exempt from disclosure. Therefore, Exemption (a) merits consideration. This exemption allows withholding of those records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, §7 (26)(a) A govemmental 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 Attomey General v. Collector ofLynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This office cannot order One Ashburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832. Fax (617) 727-5914 www.sec.state.ma. us/pre

Ms. Erin Smith SPR14/042 Page Two February 13, 2014 disclosure of records if a statute mandates nondisclosure. General Chemical Corp. v. Department of Environmental Quality Engineering, 19 Mass. App. Ct. 287 (Mass. App. Ct. 1985). Section 51F of Chapter 119 mandates that any information contained in a central registry of information created by DCF "shall be confidential," and may only be disclosed to limited parties, including the Office of the Child Advocate. The penalties for unauthorized disclosure include a fine of up to $1,000 and possible imprisonment for up to 2 Yz years. In addition, Sections 135-135B of Chapter 112 explain that confidential communications between social workers and their clients are confidential. G. L. c. 112, §§ 135-135B. Pursuant to the Code of Massachusetts Regulations, the Registry of Alleged Perpetrators is "a component of the Central Registry maintained pursuant to" Section 51F of Chapter 119. 110 C.M.R. 4.36. The regulation further states that disclosure of the Registry is limited in a manner consistent with Section 51F. 110 C.M.R. 4.38. Accordingly, I find that DCR acted within its discretion in withholding these records from disclosure. As such I decline to opine upon the remaining statutes and regulations cited by Attorney Peel in her denial. Requests # 3 and # 4 Requests # 3 and # 4 consist of questions regarding persons whose names are placed upon the Registry of Alleged Perpetrators. In her response Attorney Peel indicated that DCF possesses no records that are responsive to these requests. Under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. Accordingly, as DCF has no records responsive to Requests # 3 and# 4, and is not required to create them, Attorney Peel properly indicated that DCF has no documents responsive to this portion of your request. Conclusion Whereas DCF has properly denied Requests# 1 and# 2 under Exemption (a) of the Public Records Law, and is encouraged but not obligated to answer questions made in response to Requests # 3 and # 4, your administrative appeal is now closed. Supervisor of Records cc: Ms. Virginia A Peel, Esq.