Steven Fitzgerald v. Department of Mental Health (SPR 20180998)

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

Rebecca S. Murray Supervisor of Records

July 19, 2018 SPR18/998

Olubunmi A. Olotu, Esq. Department of Mental Health 25 Staniford Street

Boston, MA 02114

Dear Attorney Olotu:

I have received the petition of Steven Fitzgerald appealing the response of the Department of Mental Health (Department) to.a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on June 20, 2018, Mr. Fitzgerald requested the following:

any and all reports, documents, logs, memo’s [sic], disclosures, accounts, diary, script, evidence, instrument, notes, recordings, article, pages, notice, announcement, bulletin, message, conveyance, tapes, affidavit, manifest, notification, or contract about [an identified] encounter... names and titles/ranks of all participants in the latest attempt to illegally force [an identified individual] to be medicated on August 11, 2013... any and all reports, documents, logs, memo’s, disclosures, accounts, diary, script, evidence, instrument, notes, recordings, article, pages, notice, announcement, bulletin, message, conveyance, tapes, affidavit, manifest, notification, or contract made to any Law Enforcement or outside agency.

On July 6, 2018, the Department denied his request claiming the responsive records are exempt from disclosure “[p]ursuant to applicable privacy laws.”

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.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).

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

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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)(vili); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records.

Compliance with the requirements of providing a response; specificity

The Department’s July 6 response indicates that it “is required to redact information from records requested under a public records request that would directly or in combination with the other available information identify individuals served by mental health facilities or programs and/or constitute an unwarranted invasion of personal privacy.” The Department further indicates that it “is unable to redact any such records sufficiently to prevent re-identification of individual

data subjects in the records. [The Department] is therefore unable to provide any records responsive to [Mr. Fitzgerald’s] request.”

Although the Department provided a response to Mr. Fitzgerald’s request, the response did not otherwise comply with the Public Records Law. Pursuant to the Public Records Law, a records access officer’s (RAO) written response must be provided within ten business days, and

must also comply with the criteria listed in the statute. The written response shall be made via first class or electronic mail and shall:

(i) 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;

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(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;

(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 the Department’s July 6 response, it remains unclear how the Department complied with the criteria required by an RAO in providing a response to a public records request. See id. Based on its response, it is uncertain whether the Department possesses records responsive to the request. The duty to comply with requests for records extends to those records

that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii).

The response additionally indicates that that Mr. Fitzgerald’s “request seeks information to which [he has] a unique right of access by statutory, regulatory, judicial, or other means. Accordingly, the records will be provided to [him] outside of the Public Records process.” However, Department’s response does not provide the means affording Mr. Fitzgerald a present “unique right of access” allowing the Department to treat his request as something other than a public records request under the Public Records Law. See 950 C.M.R. 32.06(1)(g).

Additionally, pursuant to the Public Records Law, the custodian has the burden to prove with specificity the exemption which applies. G. L. c. 66, § 10(b)(iv); see also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The Department’s response did not contain the specificity required in a denial of access to public records. Instead, the Department’s response merely states that there are “applicable privacy laws” without claiming an exemption under the Public Records Law or providing any further explanation as to specifically what “privacy laws” are being claimed and their applicability to the requested records. The Department is not permitted to issue a blanket denial without providing any further information with respect to the requested records. As a result, I find that the Department did not satisfy its burden in responding to this records request. The Department is advised that a records

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custodian is required to claim an exemption and specifically explain the applicability of the

exemption to the requested records in order to comply with the Public Records Law and its Access Regulations.

I understand a Public Records Division staff attorney contacted your office about this matter.

Order

Accordingly, the Department is ordered to provide Mr. Fitzgerald with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations 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.

Sincerely,

Rebecca S. co. Mua

Supervisor of Records

cc: Steven Fitzgerald