Deirdre Bannon v. Department of Developmental Services (SPR 20170530)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 3, 2017 SPR17/530 James Bergeron, Esq. Assistant General Counsel Department of Developmental Services 500 Harrison Avenue Boston, MA 02118 Dear Attorney Bergeron: I have received the petition of Deirdre Bannon of the Schuster Institute for Investigative Journalism (Institute) appealing the response of the Department of Developmental Services (Department or DDS) to a request for public records. G. L. c. 66 § 1O A; see also 950 C.M.R. 32.08(1). Specifically, on December 2, 2016 Noah Coolidge of the Institute requested copies of certain Human Rights Committee Meeting Minutes for the Judge Rotenberg Educational Center (JRC) from 2005 to the present. In a response dated January 9, 2017, you indicate that on December 30, 2016 Mr. Coolidge clarified the scope of the request to seek "paper records of the DDS Human Rights Committee [for all] meeting minutes forwarded to DDS from the JRC for the years 2008 to present." In its January 9th response, the Department provided copies of responsive meeting minutes. The Department redacted what it describes as "information identifying DDS clients and personal data of data subjects, including names or other confidential information" citing to Exemptions (a) and (c) of the Public Records Law as well as the Fair Information Practices Act (FIPA). G. L. c. 4 § 7(26)(a), (c); G. L. c. 66A; HIPPA, 42 U.S.C. § 1320d. The Department further explains that "the names of state employees and/or special state employees, including the names of the Human Rights Committee members, have not been redacted." The Public Records Law I note that the request for the responsive records was made prior to the new provisions of the Public Records Law (Law) that went into effect on January 1, 2017. Therefore, the prior Law's provisions and regulations apply to this request and appeal. The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § lO(c) (2016 ed.); 950 C.M.R. 32.08(4) One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre• pre@sec.state.ma.us

James Bergeron, Esq. SPRl 7/530 Page2 May 3, 2017 (2016 ed.). "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, § lO(c) (2016 ed.); see also Dist. 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. 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. Public Records Division attorneys are available during regular business hours to answer general questions regarding the Public Records Law. In addition, Public Records Division staff will visit a records custodian in person to conduct training workshops on the Public Records Law upon request. Please contact the Public Records Division directly at the telephone number provided in this determination for further information. Current appeal In Ms. Barman's appeal petition, she raises the following issues: she objects to the redaction of JRC staff names; she requests that the Institute be provided with JRC client initials, rather than a complete redaction; she indicates the February 4, 2014 Human Rights Committee Meeting Minutes report is incomplete; and she believes additional, more recent, JRC Human Rights Committee Meeting Minutes should be provided. Redaction ofs taffn ames The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § lO(c) (2016 ed.); 950 C.M.R. 32.08(4) (2016 ed.). "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, § lO(c) (2016 ed.); see also Dist. 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.

James Bergeron, Esq. SPRl 7/530 Page 3 May 3, 2017 The Department also cites FIP A in support of its position. FIP A and the Public Records Law are to be construed to work together consistent with the legislative purpose. 32 Op. Atty Gen. Mass. 157, 160 (May 18, 1977). FIPA cannot provide a basis for withholding the requested information unless the records fall within a statutory exemption to the definition of public records. See Allen v. Holyoke Hosp., 398 Mass. 372, 379 (1986) (stating that "determining whether the record sought is protected by FIP A depends on whether the record is a public record pursuant to G.L. c. 4, §7 Twenty-sixth, and subject to the disclosure provisions of G.L. c. 66A"). FIP A, by itself, cannot justify withholding information. A custodian must first specifically explain how the withheld information is exempt from the Public Records Law. Once a record is found to be exempt from the definition of public records, FIP A may also operate to restrict disclosure. The Department has not explained how the withheld information is exempt under an exemption to the Public Records Law or FIP A. As a result, the Department has not met its burden of specificity to redact JRC staff names. Provision ofc lient initials The duty to comply with requests for information extends only to those records that exist and are in the custody of the custodian ofrecords at the time of the request. See G. L. c. 4, § 7(26) (2016 ed.) (defining "custodian" as the public employee with routine access to or control of public records). There is no obligation to create a record in response to a request for public records. See G. L. c. 66, § lO(a) (2016 ed.); 32 Op. Atty Gen. 157, 165 (May 18, 1977) ( custodian is not obliged to create a record in response to a request for information). Therefore, the Department is not required to provide JRC client initials under the Public Records Law. Provision ofa dditional records In accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requesters in obtaining the desired information. See 950 C.M.R. 32.05(4) (2016 ed.). The Department must confirm whether it maintains any additional records responsive to the request, in particular the February 4, 2014 Human Rights Committee Meeting Minutes report and more recent JRC Human Rights Committee Meeting Minutes. Any additional records must be provided in accordance with the Public Records Law and its Regulations. I understand a Public Records Division staff attorney contacted you and you indicated the Department would provide a supplemental response to Ms. Bannon. Conclusion Accordingly, I will consider this appeal closed with the proviso that the Department provide Ms. Bannon with a response to the request, provided in a manner consistent with this

James Bergeron, Esq. SPRl 7/530 Page 4 May 3, 2017 order, the Public Records Law and its Regulations within ten business days. 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. Ms. Bannon may appeal the substantive nature of the Department's response within ninety (90) days. See C.M.R. 32.08(1). Sincerely, ~~ Supervisor of Records cc: Deirdre Bannon