Charlotte L. Bednar v. Department of Developmental Services (SPR 20180032)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division

Rebecca 8. Murray Supervisor of Records

January 23, 2018

SPR18/032 Marianne Meacham, Esq.

General Counsel

Department of Developmental Services 500 Harrison Avenue

Boston, MA 02118

Dear Attorney Meacham:

I have received the petition of Charlotte Bednar, Esq. appealing the response of the Department of Developmental Services (Department or DDS) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Attorney Bednar requested various records related to proposed amendments to an identified Department regulation. The Department

provided a fee estimate for the production of records. Objecting to this fee, Attorney Bednar appealed to this office.

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, § 10A(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, § 10(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.

If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records.

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

Marianne Meacham, Esq. SPR18/032 Page 2 . January 23, 2018

Purpose of request

Please note that the reason for which a requester seeks access to or a copy of a public record 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 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, Attorney Bednar’s purpose in making the request has no bearing on the public status of any existing responsive records. |

It should be noted that the discovery process and the Public Records Law are two distinct - and independent avenues for gaining access to records. The Massachusetts Supreme Judicial Court has held that while a party’s access to records may be limited by the Public Records Law, this may not preclude obtaining the records through discovery. Commonwealth v. Wanis, 426 Mass. 639 (1998). See also 950 C.M.R. 32.08(1)(a) (the administrative appeal process “shall not apply to records in which an individual, or a representative of the individual, has a unique right of access to the record through statutory, regulatory, judicial or other applicable means”). As

such, Attorney Bednar may wish to consider another means of seeking to obtain any existing responsive records.

Department responses

I understand the parties have engaged in discussions regarding this public records request for several months and that the Department provided a fee estimate on October 6, 2017. Ina response dated January 22, 2018, the Department asserts the “[r]esponsive records are related to ongoing active litigation with DDS in the Bristol County Probate and Family Court, see Judge Rotenberg Educational Center, Inc. v. Commissioner of the Department of Developmental Services, Docket No. 86E-00 18-01.”

In particular, the Department explains “the litigation concerns the same subject as JRC’s PRR. The central issue in the underlying JRC litigation is the standard of care of behavioral treatment of persons with intellectual or developmental disabilities, and specifically whether an aversive form of behavioral treatment practiced only at the Judge Rotenberg Center, contingent electric skin shock, is within the standard of care.” You explain that “[a]lso directly at issue is whether other forms of treatment, including but not limited to Positive Behavior Supports, represent the current standard for treatment.”

You also note that the search terms used in this public records request “are identical to search terms used in the underlying litigation.” Further, you explain that “[f]rom February 13, 2013 to the present, the parties have been actively engaged in litigation, including discovery involving DDS’s production of seven million pages.” You indicate that “JRC is now seeking public records for the period of time February 2013 to June 6, 2016, a period of time when the litigation was active and ongoing.” With respect to the current status of the litigation, you note “(t]he parties completed over 45 days of trial and are awaiting the Probate Court’s decision.”

Marianne Meacham, Esq. SPR18/032 = Page 3 January 23, 2018

Whereas the public records in question are the subject of a dispute in active litigation, I decline to opine on this matter. See 950 C.M.R. 32.08(2)(b). It should be noted that a change in the status of the litigation could impact the applicability of 950 C.M.R. 32.08(2)(b).

Alurea

Rebecca S. Murray Supervisor of Records

cc: Charlotte L. Bednar, Esq.