DiTullio Agostino, Diane v. Executive Office of Elder Affairs (SPR 20140304)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords August 19, 2014 SPR14/304 Ms. Diane DiTullio Agostino 14 7 Ridgewood Road Milton, MA 02186 Dear Ms. DiTullio Agostino: This office has received your petition appealing the responses of the Executive Office of Elder Affairs (Elder Affairs) to your requests for public records. See G. L. c. 66, § 10(b); see also 950 C.M.R. 32.08(6). Specifically, you requested various records relating to The Atrium at Faxon Woods located in Quincy. In a July 23, 2014 telephone conversation with an attorney on my staff, Siobhan Coyle stated that Elder Affairs has withheld responsive complaints relating to The Atrium pursuant to Exemption (a) of the Public Records Law. In order to satisfy your request, Ms. Coyle agreed to provide an aggregate breakdown of this information to you. I find that Elder Affairs has provided you with copies of all remaining responsive records. Ms. Coyle stated in a July 24, 2014 email that Elder Affairs has no responsive records relating to opinions that were rendered by the Office of the Attorney General. This office will rely on Ms. Coyle's representation that Elder Affairs does not hold copies of these records. See Konover Mgt.Corp. v. Planning Bd. of Auburn, 32 Mass. App. Ct. 319,326 (1992) (the strong presumption that a public official will perform honestly and impartially and will properly discharge the duties of his office in the public interest). Exemption (a) Exemption (a) allows for the withholding of records which are: specifically or by necessary implication exempted from disclosure by statute G.L. c. 4, § 7(26)(a) OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Ms. Diane DiTullio Agostino SPR14/304 Page Two August 19, 2014 A governmental entity may use Exemption (a) as a basis for withholding requested materials where the language of the exempting statute suggests that the public's right to inspect records under the Public Records Law is restricted. Attorney General v. Collector of Lynn, 377 Mass. 151, 154 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). Elder Affairs has withheld certain responsive records pursuant to 42 U.S.C. 3058g as it operates under Exemption (a). Section 3058g states in part that files and records relating to complaints and conditions in long-term care facilities "may be disclosed only at the discretion of the [State Long-Term Care] Ombudsman." The responsive complaints are exempt from public disclosure by this statute. It is my finding that the Office may permissibly withhold the responsive complaints pursuant to Exemption (a). Furthermore, it is my finding that Elder Affairs provided you with copies of all remaining records responsive to your requests. Accordingly, this administrative appeal is now closed. Supervisor of Records cc: Ms. Siobhan Coyle