Richard T. Moore v. Executive Office of Elder Affairs (SPR 20160469)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords July 14, 2016 SPR16/469 Ms. Siobhan Coyle Deputy Legal Counsel Executive Office of Elder Affairs One Ashburton Place, 5th Floor Boston, MA 02108 Dear Attorney Coyle: I have received the petition of Richard T. Moore appealing the response of Executive Office of Elder Affairs (EHS) to a request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Mr. Moore requested copies of Statewide Ombudsman program for assisted living residences records including investigations, complaints and observational visits. EHS denied this request citing to the Privacy and Confidentiality Requirements section of the Statewide Assisted Living Ombudsman Program Regulation. See 651C.M.R.13.13. EHS included a copy of the regulation in its response, but failed to claim any exemption to the Public Records Law. Right ofA ccess In his petition, Mr. Moore indicated that he and his organization has been provided this type of information in the past and that he and his organization may have a unique right of access to the requested records. Please note that the personal status of a requestor in the matter in question does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requesters. Access to a record requested pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requester. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Mr. Moore's and his organization's status will provide no basis as to the public status of the responsive records. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § lO(c); 950 C.M.R. 32.08(4). "Public records" is broadly defined to include all documentary materials or data, regardless of physical OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma.us/pre

Ms. Siobhan Coyle SPR16/469 Page2 July 14, 2016 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, § lO(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). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § lO(a); see also 950 C.M.R. 32.06(2) (where cost of complying with a request for public records is expected to exceed ten dollars ($10.00), custodian ofrecords shall provide written good faith estimate). Once fees are paid, a records custodian must provide the responsive records. To assist in requesting and responding to requests for public records please refer to our publication, A Guide to the Massachusetts Public Records Law. This document is available on the Internet, free of charge, at http://www.sec.state.ma.us/pre/prepdf/guide.pdf. Attorneys on my staff are available during regular business hours to answer general questions regarding the Public Records Law. In addition, members of my staff will visit a records custodian in person to conduct training workshops on the Public Records Law upon request. Please contact my office directly at the telephone number provided in this determination for further information. Order I find EHS has failed to respond to a request for public records. Accordingly, EHS is hereby ordered to provide Mr. Moore with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. il:W'' Shawn A. Williams Supervisor of Records cc: Mr. Richard T. Moore