David S. Kassel v. Disabled Persons Protection Commission (SPR 20181054)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords August 1, 2018 SPRlS/1054 Andrew Levrault, Esq. Assistant General Counsel Disabled Persons Protection Commission 300 Granite Street Braintree, MA 02184 Dear Attorney Levrault: I have received the petition of David Kassel appealing the response of the Disabled Persons Protection Commission (Commission) to a request for public records. G. L. c. 66, § IOA; see also 950 C.M.R. 32.08(1). Specifically, on July 2, 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 July 17, 2018, reiterating its March 29, 2018 response, which indicated that the records are exempt from disclosure pursuant to Exemptions (a), (c), and (f) of the Public Records Law. G. L. c. 4, § 7(26)(a), (c), (f). Previous appeal and reconsideration The requested records were the subject of a previous appeal and subsequent reconsiderations. See SPRI 8/215 Determinations of the Supervisor of Records (Supervisor) (March 1, 2108; March 22, 2018; April 20, 2018; and May 16, 2018). Following the May 16th determination Mr. Kassel renewed his request for the above referenced records. As such, the Commission provided a response on July 18, 2018. Unsatisfied with the Commission's response, Mr. Kassel petitioned this office and this appeal, SPR18/1054, was opened as a result. Subsequent to the opening of this appeal, the Commission provided a supplemental response on July 23, 2018. 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, § IOA(d); 950 C.M.R. 32.03(4). "Public records" is broadly defined to include all documentary materials or data, regardless of physical 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. SPR18/1054 Page 2 August 1, 2018 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, § lO(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, § 1O (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 July 1111 and July 23rd responses In its July 17, 2018 response, referencing the Supervisor's April 20th determination, the Commission indicates that the Supervisor determined that it" ... was justified in withholding - in their entirety - the records" sought by Mr. Kassel. As such, the Commission asserts that "[bJ ased on the Supervisor's prior Decision, the [Commission] maintains that the requested records remain exempt from disclosure for the grounds relied upon in SPRl 8/215 and that the [Commission] must preserve the confidentiality of the information that [Mr. Kassel] is seeking." In its July 23, 2018 supplemental response, the Commission asserts that the Boston Globe Media Partners, LLC v. Department of Criminal Justice Information Services, et al., Suffolk Superior Court Docket Bo. 15-1404-D decision (Globe decision), upon which Mr. Kassel relies on as the basis for his renewed request, "is materially unrelated and distinct from the Supervisor's finding concerning [the Commission's] statutory and regulatory scheme under G.L. c. 19C and 118 CMR in SPR18/215." The Commission indicates that because the Globe decision was issued prior to the Supervisor's April 20th and May 16th determinations, the Supervisor was aware of the decision during the pendency of SPR18/215. As such, the Commission contends that Mr. Kassel' s appeal should be "dismissed under the doctrine ofres judicata [in order to] avoid[] relitigation of issues that were or could have been raised in the original action" and cites case law to support the reasoning of this doctrine. The Commission further entreats the Supervisor to dismiss Mr. Kassel's appeal because his April 26, 2018 request for reconsideration was denied and also because Mr. Kassel was advised that he could seek judicial review of the matter in Superior Court. Conclusion Given that I found in my April 20th determination that the Commission had met its burden to withhold responsive records pursuant to Exemption (a) of the Public Records Law, and subsequently denied Mr. Kassel's request for reconsideration on May 16t\ I respectfully decline

Andrew Levrault, Esq. SPR18/1054 Page 3 August 1, 2018 to reverse my findings. See SPRl 8/215 Determinations of the Supervisor of Records (April 20, 2018 and May 16, 2018). 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, § I O(A). This administrative appeal is now closed. Sincerely, Rebecca S. Murray Supervisor of Records cc: David Kassel