David S. Kassel v. Disabled Persons Protection Commission (SPR 20180215)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 1, 2018 SPRlS/215 Andrew Levrault, Esq. Assistant General Counsel Disabled Persons Protection Commission 300 Granite Street, Suite 404 Braintree, MA 02184 Dear Attorney Levrault: I have received the petition of David Kassel appealing the response of the Disabled Persons Protection Commission (Commission/DPPC) to a request for public records. G. L. c. 66, §lOA; see also 950 C.M.R. 32.08(1). Specifically, on February 9, 2018, Mr. Kassel requested "any and all reports submitted to and/or produced by the DPPC regarding the death on November 15, 2017, of [an identified individual]. ... " The Commission provided a response on February 13, 2018, denying access to responsive records pursuant to Exemptions (a), (c), and (f) ofthe Public Records Law. G. L. c. 4, § 7(26)(a), (c), (f). Unsatisfied with the Commission's response, Mr. Kassel petitioned this office and this appeal, SPR18/215, 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, § IO(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

Andrew Levrault, Esq. SPR18/215 Page 2 March 1, 2018 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. The Commission's February Jih response In its February 13, 2018 response, the Commission indicated that" ... an investigation is currently pending in this matter, and as such, the DPPC cannot release any records at this time. See: M.G.L. c. 4, section 7, cl. 26 (f); 118 CMR 9.03(7) (c) and (d)." The Commission indicated that "[a]dditionally, the DPPC cannot release information about an identified data subjects [sic] absent a release from the data subject or his/her legal representative. See: M.G.L. c. 4, section 7, clause 26 (a), (c), (f); c. 66A, section 2: 118 CMR 9.03 (6)." The Commission indicated that it would need authorization from the identified individual in order to release any information once the investigation is complete and provided a link whereby Mr. Kassel could retrieve a copy of the Commission's authorization form. The Commission's February 28th supplemental response In his appeal to the Supervisor of records, Mr. Kassel indicated that "I am amending my request to clarify that I am seeking a copy of the report when the investigation is completed." Subsequent to the opening of this appeal, the Commission provided a supplemental response on February 28,2018. In its supplemental response, the Commission indicated that Mr. Kassel's appeal should "be denied at this time as unripe and procedurally improper" because, Mr. Kassel "exclusively seek[s] a record which has not yet been created." As a result, the Commission indicated that "neither the DPPC nor the Supervisor is in a position to preemptively determine whether a record, or portions of a record, not yet in existence, may or may not be public." The Commission reiterated that "the requested record-the completed investigation report concerning the subject matter referenced by the requestor-does not exist. Therefore, the DPPC is not in possession of any responsive records." Further, the Commission indicated that in its initial February 13th response, it directed Mr. Kassel to its regulations pertaining to the release of information of identified data subjects. The Commission's regulation, 118 CMR 9. 03 ( 6)(b ), reads in pertinent part: Subject to 118 CMR 9.00, M.G.L. c. 19, §3, and c. 66A, information contained in the Commission's investigation report regarding the person with a disability shall be available to that person with a disability, his or her legal representative or his or her legally appointed conservator or guardian where the person with a disability has been determined by a court of competent jurisdiction to be incapacitated.

Andrew Levrault, Esq. SPR18/215 Page 3 March 1, 2018 118 CMR 9.03 (6)(b)(1). The Commission indicated that it provided a copy of a release to Mr. Kassel in an effort to facilitate his request. No duty to create records Under the Public Records Law, the Commission is not required to create a list of records or any record in response to a public records request. In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § lO(a); 32 Op. Atty Gen. 157, 165 (May 18, 1977). Further, the Public Records Law does not require a custodian to honor a prospective request. The duty to comply with requests for information extends only to those records that exist and are in the custody of the custodian of records at the time of the request. See G. L. c. 4, § 7(26). Whereas the Commission explains its investigation is incomplete and does not possess any documents responsive to Mr. Kassel's amended request, I find that Mr. Kassel's appeal relating to this matter is resolved. Conclusion Accordingly, whereas the Commission explained that "there is no record currently in existence in the possession of the DPPC responsive to [Mr. Kassel's] amended request," I will consider this administrative appeal closed. Sincerely, Rebecca S. Murray Supervisor of Records cc: David Kassel