Kay Lazar v. Office of the Child Advocate (SPR 20191696)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray S11pen1isor ofR ecords September 4 2019 SPR19/1696 Cristine Goldman, Esq. Director of Policy and Legal Counsel Office of the Child Advocate One Ashburton Place Boston, MA 02108 Dear Attorney Goldman: I have received the petition of Kay Lazar of the Boston Globe appealing the response of Office of the Child Advocate (OCA) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Ms. Lazar requested the following records: 1. A list of each report DCF submits to the Office of the Child Advocate, each year (Item 1) ; 2. A copy of each of the reports that DCF has submitted to the Office of the Child Advocate since Jan. 1, 2016 (Item 2). The OCA initially responded on August 12, 2019 by denying access to records under G. L. c. 18C, § 12 as it operates through Exemption (a) of the Public Records Law. G. L. c. 4, § 7(26)(a). In an email dated August 15111 Ms. Lazar indicated "Item #1 is a request for the dates on which the reports from DCF to the OCA were made, which is (a) in the nature of a statistical compilation that the statute allows to be made public; and (b) is not information made confidential under MGL Chapter l 8C, section 12 ( d)." Ms. Lazar further noted "[t]herefore, the OCA can provide a listing by date of the reports it received from DCF and a generic description of the nature of the report. I realize the agency is not required to create a new document to fulfill this public records request. However, the agency can reasonably comply with this request by redacting from the reports requested everything except the date, the title ( description of said report) and the agencies that sent and received the report." The OCA provided an additional response on August 19, 2019. Ms. Lazar appealed and SPR19/1696 was opened as a result. 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

Cristine Goldman, Esq. SPRI9/1696 Page 2 September 4, 2019 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, § I OA( d); 950 C.M.R. 32.03(4 ). "Public records" is broadly defined to include all documentary materials or data, regardless of physical fonn 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) (c ustodian 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. Appeal In its August 12th response the OCA indicated "[a]ll records acquired by the OCA relating to the purpose and duties of the OCA are exempted from disclosure by M.G.L. c. I8C § 12. The records you seek are exempt from the Public Records Law and your request is therefore respectfully denied." The OCA's August 19th response asserts that with respect to Item 1, "[t]he OCA does not have any record in our possession that is responsive to your request." You also note that "[t]he OCA is mindful of the privacy considerations of the infonnation and records that are sent to us in furtherance of our duties. Under the Public Records Law the reports sent to us are exempted in their entirety from any disclosure by M.G.L. c. l 8C § 12(b ), M.G.L. c. 4 § 7 clause twenty-sixth ('exemption a')." Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, §7 (26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public's right to inspect records under the Public Records Law is restricted. See Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes

Cristine Goldman, Esq. SPR19/1696 Page 3 September 4, 2019 records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either "shall not be a public record," "shall be kept confidential" or "shall not be subject to the disclosure provision of the Public Records Law." The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. G. L. c. 18C § 12(b) provides the following: (b) Any and all information and records acquired by the child advocate in the exercise of the office's purpose and duties under this chapter shall be confidential and exempt from disclosure under chapter 66 and clause Twenty-sixth of section 7 of chapter 4. G. L. c. 18C § 12(d) provides the following: ( d) Statistical compilations of data which do not contain any infonnation that would pennit the identification of any person may be disclosed to the public. In her appeal petition Ms. Lazar indicates "[t]he Globe disagrees with OCA's claim of exemption in this case. Redacted copies of reports showing only non-personally identifiable data, including those the Globe seeks, are subject to public records requests." She further contends that "Exemption a applies to records that are exempted by statute (i) specifically or (ii) by necessary implication. Though MGL Chapter 18C generally precludes public access to OCA's documents, subsection d provides that 'statistical compilations of data which do not contain any information that would pennit the identification of any person may be disclosed to the public.' Thus, the statistical data we seek is not specifically or necessarily exempted from disclosure by MGL Chapter 18C (or any other statute)." In light of Ms. Lazar's August 15th clarification, as well as the info1111ation in her appeal petition, I find it is unclear how the requested redacted copies of reports showing only non personally identifiable data are not "[s]tatistical compilations of data which do not contain any info1mation that would permit the identification of any person" that may be disclosed to the public under G. L. c. 18C § 12(d). The OCA must clarify this matter. Conclusion Accordingly, the OCA is ordered to provide Ms. Lazar with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within 10 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.

Cristine Goldman, Esq. SPR19/1696 Page 4 September 4, 2019 Sincerely, Rebecca S. MmTay Supervisor of Records cc: Kay Lazar