Erin Smith v. Department of Early Education and Care (SPR 20180109)

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

Rebecca S. Murray Supervisor of Records

February 6, 2018 | SPR18/109

Felicia Sullivan, Esq.

Department of Early Education and Care 51 Sleeper Street

Boston, MA 02210

Dear Attorney Sullivan:

I have received the petition of Erin Smith of Boston 25 News appealing the response of the Department of Early Education and Care (Department/EEC) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on December 4, 2017, Ms. Smith requested the following records:

“se All investigations, including but not limited to all investigation reports created by the Department of Early Education and Care, for licensed programs for Civitas Solutions, Inc., Mentor Network, National Mentor Holdings, Inc. or any subsidiaries or affiliates from Jan. 1, 2013 to present.

¢ All licensing studies done by the Department of Early Education and Care, for Licensed programs for Civitas Solutions, Inc., Mentor Network, National Mentor Holdings, Inc. or any subsidiaries or affiliates from Jan. 1, 2013 to present.”

Ms. Smith subsequently requested the following information:

“1, How many complaints has EEC received for licensed programs for Civitas Solutions, Inc., Mentor Network, National Mentor Holdings, Inc. or any subsidiaries or affiliates from Jan. 1, 2013 to present.

2. How many of those complaints have resulted in EEC investigations?”

Previous appeal

This request was the subject of a previous appeal. See SPR17/1749 Determination of Supervisor of Records (January 5, 2018). I closed SPR17/1749 with the proviso that the Department provide Ms. Smith with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations.

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

Felicia Sullivan, Esq. SPR18/109 Page 2 February 6, 2018

Following the January 5, 2018 determination, the Department provided a response dated January 19, 2018 explaining how the Department complied with the requirements of 950 C.MLR. 32.06(2) under the Public Records Law to assess a fee outside the ten business days statutory limit. Unsatisfied with the Department’s response, Ms. Smith petitioned this office and this appeal, SPR18/109, 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, § 1OA(d); 950 C.MLR. 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.

The Department’s January I gf response

In its January 19, 2018 response, the Department indicated that Ms. Smith’s original December 4, 2017 request “yielded no responsive records when EEC queried the Depariment’s internal licensing database, and EEC notified [Ms. Smith] of this in accordance with 950 C.M.R. 32.06(2)(b). ” The Department indicated that it was able to clearly identify the records that could be produced only when it received all of the program addresses on December 18, 2017. The Department cites 950 C.M.R. 32.06(1)(f) which states that, “calculation of time will commence only for requests that are made in accordance with 950 C.M.R. 32.06(1)” and asserts that because the December 4" request “did not clearly yield responsive records, the time for the production of a cost estimate did not begin to toll until December 18, 2017, when a clear request was provided to the Department.” The Department also provided a revised fee estimate.

Compliance with the requirements of providing a response

A review of the documents submitted by Ms. Smith reveals that the Department provided a response to Ms. Smith’s December 4" request on December 14, 2017. In the December 14" response, the Department indicated that a search in its database did not yield any results for licenses with “Civitas Solutions, Inc.,” “Mentor Network,” or “National Mentor Holdings, Inc.”

Felicia Sullivan, Esq. SPR18/109 Page 3 February 6, 2018

(Program names). However, it indicated that it could search by street address, city, or zip, if Ms. Smith had that information available. On December 15, 2017, the Department also indicated that although it could search by Umbrella name, their database revealed “no umbrella organizations that match” the Program names. Ms. Smith opted to compile a list of program names and addresses under the Mentor program to assist the Department in locating responsive records. Ms. Smith provided two separate lists to the Department on December 15, 2017 and December 18, 2017. After receiving the lists, the Department provided a fee estimate on December 22, 2018.

A Records Access Officer (RAO) may not charge a fee unless the RAO provides a written response in compliance with G. L. c. 66, § 10(b) within ten business days following receipt of the request. The Department may not be permitted to charge fees associated with Ms. Smith’s December 4th request if the Department did not provide a response in full compliance with this provision of the law. See G. L. c. 66, § 10(e); see also 950 C.M.R, 32.06(2)(c).

The Department complied with the ten business day requirement of the Public Records Law, by providing a response on the eighth day indicating its search yielded no results. However, an RAO’s written response must not only be provided within ten business days, but must also comply with the criteria listed in the statute. The written response shall be made via first class or electronic mail and shall:

(1) confirm receipt of the request;

(ii) identify any public records or categories of public records sought that are not within the possession, custody, or control of the agency or municipality that the records access officer serves;

(iii) identify the agency or municipality that may be in possession, custody or control of the public record sought, if known; ,

(iv) identify any records, categories of records or portions of records that the agency or. municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based, provided that nothing in the written response shall limit an agency’s or municipality’s ability to redact or withhold information in accordance with state or federal law;

(v) identify any public records, categories of records, or portions of records that the agency or municipality intends to produce, and provide a detailed statement describing why the magnitude or difficulty of the request unduly burdens the other responsibilities of the agency or municipality and therefore requires additional time

~ to produce the public records sought;

(vi) identify a reasonable timeframe in which the agency or municipality shall produce the public records sought; provided, that for an agency, the timeframe shall not exceed 15 business days following the initial receipt of the request for public records and for a municipality the timeframe shall not exceed 25 business days following the initial receipt of the request for public records; and provided further, _ that the requestor may voluntarily agree to a response date beyond the timeframes set forth herein;

Felicia Sullivan, Esq. SPR18/109 Page 4 February 6, 2018

(vii) suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency or municipality to produce records sought more efficiently and affordably;

(viii) include an itemized, good faith estimate of any fees that may be charged to produce the records; and

(ix) include a statement informing the requestor of the right of appeal to the supervisor of records under subsection (a) of section 10A and the right to seek judicial review of an unfavorable decision by commencing a civil action in the superior court under subsection (c) of section 10A.

G. L. c. 66, § 10(b).

Despite its January 19"" supplemental response, it remains unclear how the Department complied with the criteria required by an RAO in providing a response to a public records request. G. L. c. 66, § 10(e); 950 C.M.R 32.06(2(c).

Duty to use superior knowledge

In accordance with the Public Records Law, a custodian is expected to use his/her superior knowledge of the records in his/her custody to assist the requester in obtaining the desired information. See 950 C.M.R. 32.04(5). Based on the Department’s response and the expectation that it use its superior knowledge of the records in responding to the request, it is unclear why the Department could not locate responsive records with the information provided by Ms. Smith. Ms. Smith continues to reiterate in her appeal that the list of programs is easily accessible in the Department’s computer searchable database. Accordingly, I find the . Department has not met its burden to explain how the request could not prudently be completed without Ms. Smith providing specific program names and addresses to the Department. Consequently, I find Ms. Smith’s December 15" email which provided the Department with the first list of program names and addresses was not a new public records request as the list was to assist the Department to efficiently provide responsive records to the December 4" request. As such, the Department’s fee estimate provided on December 22, 2017 was not in compliance with the provisions of the Public Records Law and its Access Regulations. Accordingly, the Department may not assess a fee for this public records request. I understand a Public Records Division staff attorney contacted your office about this appeal but was unable to reach you prior to the issuance of this decision.

Conclusion

Whereas, I find that the Department did not comply with its statutory and regulatory obligation under the Public Records Law to assess a fee outside the ten business days period, I will not opine on the Department’s revised fee estimate provided on January 19, 2018.

Accordingly, the Department is hereby ordered to provide Ms. Smith responsive records, provided in a manner consistent with this order, the Public Records Law, and its Regulations

Felicia Sullivan, Esq. SPR18/109 Page 5 February 6, 2018

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.

Smith may appeal the substantive nature of the Department’s response within ninety days. See 950 C.MLR. 32.08(1).

Sincerely,

Relucea Muass

Rebecca S. Murray Supervisor of Records

cc: Erin Smith