McKim, Jenifer v. Executive Office of Health and Human Services (SPR 20150746)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division December 15,2015 Shawn A. Williams Supervisor ofR ecords SPRlS/746 Mr. Andrew Todd Rome, Esq. General Counsel Department of Children and Families Office of the General Counsel 600 Washington Street, 6th Floor Boston, MA 02111 Dear Attorney Rome: I have received the petition of Jenifer B. McKim ofthe New England Center for Investigative Reporting (NECIR) appealing the response ofthe Department of Children and Families (DCF) to her June 18,2014 request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Ms. McKim requested "information about all child deaths linked to abuse and neglect between Jan. 1, 2009 and Dec. 31, 2013, available under the federal 'CAPTA Fatality and Near Fatality Public Disclosure Policy."' Subsequent to the August 2014 payment of fees by the NECIR, DCF commenced providing responsive records. The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10(c); 950 C.M.R. 32.08(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 town 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(c); see also District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). Previous Determination and Subsequent Correspondence This request was the subject of a previous appeal. Ms. McKim requested "information about all child deaths linked to abuse and neglect between Jan. 1, 2009 and Dec. 31, 2013, available under the federal 'CAPTA Fatality and Near Fatality Public Disclosure Policy."' In an April23, 2015 petition to this office Ms. McKim appealed the DCF decision "to limit 'information describing any previous investigations' to only substantiated allegations of abuse and neglect." OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Mr. Andrew Todd Rome, Esq. SPR15/746 Page Two December 15, 2015 In my September 14 Determination, I determined that Ms. McKim would benefit by DCF' s superior knowledge of its records by way of an explanation as to the responsive records that exist, including an explanation of those portions of the responsive records that were disclosed pursuant to the CAPTA requirements. In addition, I ordered the DCF to provide Ms. McKim with any remaining requested records. If DCF maintained that any portion of the responsive records are exempt from disclosure it was ordered, within ten (1 0) days provide to her with a written explanation, with specificity, how a particular exemption applies to each withheld record. See SPR15/323 Determination of the Supervisor of Records (September 14, 20 15). Records previously disclosed pursuant to CAPTA . In response to the September 4 Determination DCF provided Ms. McKim with letter dated September 18, 2015 clarifying its position. It its letter DCF explained that it had previously provided records which related to substantial findings of abuse or neglect that resulted in a child fatality. The disclosure of such records to the public is the requirement, under the Child Abuse Prevention Treatment Act (CAPTA ). CAPTA § 51 06a involves the provision of federal grants to states for child abuse or neglect prevention and treatment programs. To be eligible for a grant a state must certify that it has in effect and is enforcing a State law, or has in effect and is operating a statewide program, relating to child abuse and neglect that includes-provisions which allow for public disclosure of the findings or information about the case of child abuse or neglect which has resulted in a child fatality or near fatality. 42 USC 51 06a(b) (2)(B)(x). DCF explained that it provided records relating to substantiated findings of abuse or neglect that resulted in a child fatality. Records withheld. In its September 18 letter DCF clarified its position with regards to the records it withheld. DCF withheld records regarding prior or unrelated allegations of abuse or neglect that were unsupported or unsubstantiated. DCF described the withheld records as unsupported or unsubstantiated 51A reports. In its September 18 letter the DCF explained that the only records it withheld were unsupported and unsubstantiated 51A reports. DCF explained that "where a child has died, and prior or unrelated allegations of abuse or neglect are unsupported and unsubstantiated, these records are not pertinent 'to the case of child abuse or neglect which resulted in a child fatality or near fatality' which is the requirement of CAPTA . DCF asserts that these records are not pertinent to cases of child abuse or neglect which resulted in a child fatality or near fatality and is therefore statutorily prohibited from providing them pursuant to 42 U.S.C. 5106a(b)(2)(B)(viii) CAPTA , G.L. c. 119, §§51E, 51F, Reports of Injured Children, Files, Confidentiality, Central Registry Information, Confidentiality ; G.L. c.

Mr. Andrew Todd Rome, Esq. SPR15/746 Page Three December 15, 2015 66A, (limiting release of information concerning data subjects); G.L. c. 112, §§135-135B (limiting release of social worker/ client communications); 42 USC §671(a)(8) (Title VI-E of the Social Security Act) and 42 CFR §205.50 (Federal Regulations of Title VI-E) as the all operate by way of Exemption (a), the statutory exemption to the Public Records Law and G.L. c. 4, §7, cl. 26(c ) the privacy exemption to the Public Records Law. Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, §7 (26) A governmental 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 Attorney General v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This office cannot order 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). In its September 18 letter DCF confirms that the only records it withheld are unsupported and unsubstantiated 51 A reports. Section 51 A reports involve the reporting of suspected abuse or neglect; mandated reporters; collection of physical evidence; penalties; content of reports; liability; privileged communication. G. L. c. 119 §51A The applicable statute that permits the DCF to withhold 51A reports pursuant to Exemption (a) are G.L. c. 119, §§51E, 51F, Reports oflnjured Children, Files, Confidentiality, Central Registry Information, Confidentiality, respectively. G.L. c. 119, §51E, Reports oflnjured Children, Files, and Confidentiality provides in pertinent part: The department shall maintain a file of the written reports prepared under this section and sections 51 A to 51 D, inclusive. These written reports shall be confidential. G.L. c. 119, §51F, Reports oflnjured Children, Files, Confidentiality, Central Registry Information, and Confidentiality provides in pertinent part:

Mr. Andrew Todd Rome, Esq. SPR15/746 Page Four December 15, 20 15 The department shall maintain a central registry of information sufficient to identify children whose names are reported under sections 51A to 51B. Data and information relating to individual cases in the central registry shall be confidential and shall be made available only with the approval of the commissioner or upon court order. Accordingly, the language of the statute strictly prohibits the dissemination 51A reports and data and information relating to individual cases. Therefore, the 51A reports are exempt from disclosure pursuant to G.L. c. 119, §§51E, 51F operating through Exemption (a) of the Public Records Law. cc: Ms. Jenifer B. McKim