David S. Kassel v. Department of Developmental Services (SPR 20180012)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 17, 2018 SPRlS/012 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 December 26, 2017 supplemental response of the Department of Developmental Services (Department) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, on November 10, 2017, Mr. Kassel requested a copy of the "Action Plan" oflnvestigation No. 03-NENS-17-0112, and documents related to, or that support, the "Action Plan" including Department emails and memoranda. Previous appeal-SPR17!1652 In a November 27th response, the Department denied Mr. Kassel's request pursuant to Exemptions (a), the Health Insurance Portability and Accountability Act (HIPAA), and the Fair Information Practices Act (G. L. c. 66A, § 2; Exemption (c); and Exemption (f) of the Public Records Law. Mr. Kassel petitioned this office and an appeal was opened. See SPRl 7 /1652 Determination of the Supervisor of Records (Supervisor) (December 12, 2017). In my December 11 li determination, I found that the Department did not meet its burden in withholding the records in their entirety, and I closed SPRl 7/1652 with the Department's promise to provide a supplemental response concerning the exemption claims. On December 26t\ the Department provided a supplemental response concerning the request for the Action Plan and any related records such as emails and memoranda. In its December 26th response, the Department provided further information concerning its Exemption claims to withhold the Action Plan pursuant to Exemptions (a) and (c) of the Public Records Law, and Exemption (f) to withhold any related records due to an on-going investigation by the Office of the District Attorney Essex District. 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. SPR18/012 Page2 January 17, 2018 Attorney Bergeron also states in his response that should Mr. Kassel obtain a signed release to access the requested records and return said release to the Department, the Action Plan will be released to Mr. Kassel. The Department provided an "Authorization for Release of Information Form" with its response Mr. Kassel, and a copy to this office. Current appeal - SPRJ 8/012 Mr. Kassel appealed the supplemental response and the current appeal, SPR18/012, was opened. In his January 2, 2018 petition, Mr. Kassel indicates that at the present-time he is withdrawing his request for the records related to the "Action Plan," specifically any emails and memoranda, and states that he is only seeking a redacted copy of the "Action Plan." In addition, Mr. Kassel states in his petition, "[a] party to the complaint is planning to submit a form, provided by Attorney Ber~eron, to the Department that would authorize access to the action plan." By email on January 16t , you informed an attorney in the Public Records Division that on January 2nd, the Department received a signed Authorization for Release of Information form from the guardian of the individual receiving support from the Department, allowing the release of the record to Mr. Kassel. Your email states that Mr. Kassel received the record on January 12th pursuant to the guardian's authorization outside of the Public Records Law. Mr. Kassel should be advised that the appeal process under the Public Records Law shall not apply to records in which an individual, or a representative of the individual, has a unique right of access to the records through statutory, regulatory, judicial or other applicable means. See 950 C.M.R. 32.08(1)(a). In this appeal, the record was provided to Mr. Kassel subsequent to the receipt of an authorization to release the information signed by a party to the complaint process. This signed release allowed Mr. Kassel a unique right of access to the record requested. Accordingly, whereas Mr. Kassel was provided with a copy of the requested Action Plan, I decline to continue any further review of Mr. Kassel's petition or any applicable exemption claims. This appeal is closed. If Mr. Kassel is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § lO(b) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, ~~ Supervisor of Records cc: David Kassel