David S. Kassel v. Department of Developmental Services (SPR 20171652)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords December 12, 2017 SPR17/1652 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 David Kassel of The Massachusetts Coalition ofF amilies and Advocates appealing the response of the Department of Developmental Services (Department) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Kassel requested a copy of an Action Plan regarding an investigation and various forms of documents that pertain to the Action Plan. The Department denied Mr. Kassel' s request in its entirety pursuant to Exemptions (a), (c) and (f) of the Public Records Law. Unsatisfied with the Department's response, Mr. Kassel petitioned this office and this appeal was opened as a result. 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, § lOA (d); 950 C.M.R. 32.03(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, § 1O (b)(iv); 950 C.M.R. 32.06(3); 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. 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 7/1652 Page 2 December 12, 2017 If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1 O(b )(viii); see also 950 C.M.R. 32.07(2). 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 at http://www.sec.state.ma.us/pre/prepdf/guide.pdf. Attorneys in the Public Records Division are available during regular business hours to answer general questions regarding the Public Records Law. In addition, staff members in the Public Records Division 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. The Department's November 2th response 11 In its November 2i response, the Department indicates that the records have been withheld in their entirety under Exemptions (a), (f), and the first clause of Exemption (c) of the Public Records Law. Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding ofrecords that are: Specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7(26)(a). 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 Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either "shall not be a public record," "shall be kept confidential" or "shall not be subject to the disclosure provision of the Public Records Law." The second category under the exemption includes records deemed exempt under statute by necessary implication. The Department cites G. L. c. 66A, § 2 (Fair Information Practices Act); the Privacy Rule of the Health Insurance Portability and Accountability Act (HIPAA), 42 U.S.C. 1320d and its regulations, 45 CFR Parts 160 and 164; and the Department's statute and regulations, G. L. c. 123B, § 17 and 115 C.M.R. 4.00 et seq., as a means for withholding the requested record. However, the Department did not explain the section of the statutes that the Department relies

James Bergeron, Esq. SPRl 7/1652 Page 3 December 12, 2017 on, nor did it specify how these statutes allow the Department to withhold the records in their entirety pursuant to Exemption (a). As a result, I find that the Department has not met its burden in claiming Exemption (a) to withhold the records or portions of the records. Exemption (c) Exemption ( c) permits the withholding of: personnel and medical files or information; also any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy G. L. c. 4, § 7(26)(c). Exemption ( c) contains two independent clauses, each requiring its own analysis. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 432-33 (1983). The first clause creates a categorical exemption for personnel and medical information that relates to an identifiable individual and is of a "personal nature." Id. at 434. Medical information that is of a personal nature and relates to a specifically named individual is exempt from disclosure. Brogan v. School Comm. of Westport, 401 Mass. 306, 308 (1987); Globe Newspaper Co., 388 Mass. at 438. Generally, medical information will always be of a sufficiently personal nature to warrant exemption. Globe Newspaper Company, 338 Mass. at 432-34. There is a strong public policy in Massachusetts that favors confidentiality as to medical data about a person's body. Globe Newspaper Co. v. Chief Medical Examiner, 404 Mass. 132, 135 (1987). The Department's response indicates that to the extent that the request seeks complaint related documents and/or investigative materials concerning identifiable Department clients, the records have been withheld under the first clause of Exemption ( c) due to the medical information contained in the record. It is unclear why the Department cannot redact the medical information from the record, and provide the balance of the record to Mr. Kassel. Therefore, the Department has not met its burden of supporting its Exemption ( c) claim to withhold the requested records. Exemption (I) Exemption (f) permits the withholding of: investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest G. L. C. 4, § 7 (26)(f).

James Bergeron, Esq. SPRl 7/1652 Page 4 December 12, 2017 A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 371 Mass 59, 62 (1976). Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Attorney Gen., 52 Mass. App. Ct. 244,248 (2001); Reinstein v. Police Comm'r of Boston, 378 Mass. 281,290 n.18 (1979). Exemption (f) invites a "case-by case consideration" of whether disclosure "would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest." See Reinstein, 378 Mass. at 289-90. The Department's response states that investigative materials identifiable to specific individuals receiving services from the Department are not considered public records and are generally disseminated only to the parties to the complaint. Similar to the Department's argument to withhold the records in their entirety under Exemption (c), the Department's response states that to the extent that the records are sought are complaint-related documents and/or investigative materials concerning identifiable clients, such records are exempt under Exemption (f). It is unclear how disclosure of an Action Plan and the related records that may have been drafted after the Department's investigation can be withheld as investigatory records under Exemption (f). The Department has not explained how disclosure of the Action Plan and related records will so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest. Furthermore, the Department has failed to explain what records are in its custody and responsive to Mr. Kassel's request. As a result, the Department has not met its burden of demonstrating how the requested Action Report and any related records, in their entirety, are exempt from disclosure. See Reinstein, 378 Mass. at 289-90 (the statutory exemptions are narrowly construed and are not blanket in nature). The Department must produce any non exempt, segregable portions of the public records. G. L. c. 66, § lO(a). Conclusion It is my understanding that an attorney in the Public Records Division contacted you by telephone to discuss the appeal. Accordingly, the Department is hereby ordered to provide Mr. Kassel with a supplemental response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) 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. Mr. Kassel may appeal the substantive nature of the supplemental response within ninety calendar days. 950 C.M.R. 32.08(1).

James Bergeron, Esq. SPRl 7/1652 Page 5 December 12, 2017 Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: David S. Kassel