Kay Lazar v. Office of the Child Advocate (SPR 20192008)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords October 17, 2019 SPR19/2008 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, § IOA; 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. l 8C, § 12 as it operates through Exemption (a) of the Public Records Law. G. L. c. 4, § 7(26)(a). In an email dated August 15th Ms. Lazar indicated "Item #1 is a request for the dates on which the rep01is 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 18C, 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." Previous appeal This request was the subject of a previous appeal. See SPR19/1696 Determination of the Supervisor of Records (September 4, 2019). In my September 4th determination I ordered the 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. SPR19/2008 Page 2 October 17, 2019 OCA to provide Ms. Lazar with a response to the request, provided in a manner consistent with the order, the Public Records Law and its Regulations. The OCA responded on September 18, 2019. Ms. Lazar appealed and SPR19/2008 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, § 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 p01iion of the responsive record. Current appeal In an initial response dated August 12, 2019 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. 18C § 12. The records you seek are exempt from the Public Records Law and your request is therefore respectfully denied." The OCA's August 19th supplemental response asse1ied 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 noted that "[t]he OCA is mindful of the privacy considerations of the information 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. 18C § 12(b), M.G.L. c. 4 § 7 clause twenty-sixth ('exemption a')." In her previous appeal petition Ms. Lazar indicated "[t]he Globe disagrees with OCA's claim of exemption in this case. Redacted copies of rep01is showing only non-personally identifiable data, including those the Globe seeks, are subject to public records requests." She further contended 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 permit 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)."

Cristine Goldman, Esq. SPR19/2008 Page 3 October 17, 2019 In my September 4th determination I found it was unclear how the requested redacted copies ofreports showing only n011-personally identifiable data are not "[s]tatistical compilations of data which do not contain any information that would permit the identification of any person" that may be disclosed to the public under G. L. c. l 8C § 12(d ). I indicated that the OCA must clarify this matter. The OCA 's September 181'1 response In its September 1 gth response the OCA indicates that it " ... does not have a document responsive to your request in its possession, custody, or control. The OCA is not required to create a record to satisfy a public records request. Your request that the OCA redact multiple records in such a way that those records can then be compiled to create the 'list' that you seek, is equivalent to requesting that the OCA create a record to satisfy your request." With respect to the ability to redact responsive records, you assert "[t]he records that DCF submits to the OCA, which you are seeking to have partially released after redaction, are exempted from release in their entirety under the Public Records Law. ..." The OCA cites G. L. c. 18C § 12(a)-(b) and Exemption (r) in support of its position. In her current appeal petition Ms. Lazar indicates "[t]he OCA responded by arguing that the redacted copies of the reports are not statistical compilations subject to disclosure under G.L. l 8C § 12(d ) because it defines 'statistical compilation' as a 'purposeful interpretation of data points that is presented in order to communicate or describe information.' However, the OCA provides no legal basis for applying this definition, rather than the more logical understanding that a "statistical compilation" is a compiled, or gathered, group of statistics such as the records I am seeking." (emphasis in original). Ms. Lazar also notes "[t]he OCA further argues that the redacted copies of reports are subject to Exemption (a) beca,use G.L. 18C § 12(d) permits rather than requires disclosure of statistical compilations. This argument confuses the circumstances under which Exemption (a) permits withholding. Exemption (a) applies only where the withholding ofrecords is specifically or necessarily by implication exempted from disclosure by statute. G. L. c. l 8C § 12(d ) provides an exception to the statutory exemption provided in 12(b) , and as such, this argument fails." ( emphasis in original). Ms. Lazar asks this office to order the OCA to produce redacted documents. Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding ofrecords that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, §7 (26)(a).

Cristine Goldman, Esq. SPR19/2008 Page 4 October 17, 2019 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 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. The OCA continues by noting "[t]he records and documents the OCA has acquired from DCF fall within this office's purpose and duties. The statute does not permit redaction of certain information for partial release of records or documents. The statute prohibits the disclosure of the records in their entirety." You also reference G. L. c. l 8C, § 12(a) which provides in pertinent part: ... The child advocate shall ensure that no information submitted for his review is disseminated to parties outside the office, except when disclosure may be necessary to enable the child advocate to perfo1m the child advocate's duties. Exemption (r) The OCA asserts that in addition to Exemption (a), OCA records are exempt under Exemption (r). Exemption (r) allows for the withholding of: Information and records acquired under chapter 18C by the office of the child advocate. G. L. c. 4, § 7 (26)(r).

Cristine Goldman, Esq. SPR19/2008 Page 5 October 17, 2019 The OCA contends "[u]nder both [E]xemption (a) and [E]xemption (r), the records, and all information within those records, are exempt from disclosure under the Public Records Law. The OCA therefore does not share your position that certain information in the exempt records is subject to release. The confidentiality of 'any and all information' would include dates, titles of reports, what agency the reports are from, and any further information that you are seeking to have released. It would be a violation of the confidentiality required by M.G.L. c. 18C § 12(b) to disclose any portion of an exempt record by selectively redacting the information therein." Statistical compilations As noted above, in her appeal petition Ms. Lazar indicates that she seeks redacted copies ofreports and references G. L. c. l 8C, § 12(d ) in supp01i of her position. G. L. c. l 8C, § 12(d ) provides the following: ( d) Statistical compilations of data which do not contain any information that would permit the identification of any person may be disclosed to the public. You assert that "[t]he OCA submits that a 'statistical compilation' is a purposeful interpretation of data points that is presented in order to communicate or describe information. The OCA receives data from multiple sources, including in reports from DCF and other agencies, then compiles and analyzes the data to create a 'statistical compilation' with a purposeful interpretation and presentation of the data. The underlying reports may involve individual data points, but are not statistical, and the data has not been purposefully interpreted, presented, or manipulated." You also indicate "[f]urther, the OCA has the permissive authority to release statistical compilations if they exist, as evidenced by the term 'may' in M.G.L. c. l 8C § 12(d). The OCA declines to release any statistical compilation of the information you seek, if one exists, to you." You also refer Ms. Lazar to a website to find statistical compilations of data in annual reports. With respect to the issue of whether responsive statistical compilations exist, the OCA asserts" ... the date on which a rep01i is filed, the title of such a report, and agency information is not a 'statistic' as the term is commonly used. Accordingly, [t]he OCA does not have a 'statistical compilation' containing the information you seek in its possession, custody, or control." In light of the OCA's September 18111 response that explains the applicability of G. L. c. l 8C, § 12(a )-(b) and Exemption (r) to the rep01is at issue, I find the OCA has met its burden to show how these exemptions apply to the responsive records in theh' entirety. Further, I find the OCA has established how redacted reports do not constitute "statistical compilations of data" as contemplated by G. L. c. 18C, § 12(d). As a result, I find the OCA has met its burden to show how G. L. c. l 8C, § 12( d) does not require the requested redacted copies of reports be produced as "statistical compilations of data." Accordingly, I will consider this appeal closed.

Cristine Goldman, Esq. SPR19/2008 Page 6 October 17, 2019 Sincerely, Rebecca S. Murray Supervisor of Records cc: Kay Lazar