David S. Kassel v. Department of Developmental Services (SPR 20201252)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 10, 2020 SPR20/1252 James Bergeron, Esq. General Counsel Department of Developmental Services 500 Harrison Avenue Boston, MA 02118 Dear Attorney Bergeron: I have received the petition of David Kassel appealing the response of the Department of Developmental Services (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Kassel requested “information concerning the dates and causes of death regarding all residents of group homes and other residential facilities managed or funded by DDS who died between January 1, 2020, and the present.” The Department responded on July 23, 2020, indicating that the requested information is exempt from disclosure pursuant to Exemptions (a) and (c) of the Public Records Law. Unsatisfied with the Department’s response, Mr. Kassel petitioned this office and this appeal, SPR20/1252, 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, § 10A(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, § 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. 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

James Bergeron, Esq. SPR20/1252 Page 2 August 10, 2020 Current Appeal In its July 23, 2020 response, the Department states that it “is not the custodian of public records responsive to your request. In accordance with M.G.L. c. 46, §§ 1, 9, an individual’s cause of death is recorded by a physician, hospital medical officer, or the medical examiner on an official certificate of death.” The department further explains that “[t]o the extent DDS maintains information on the deaths of individuals receiving services, such information is confidential and exempt from disclosure pursuant to the public records law,” citing Exemptions (a) and (c) of the Public Records Law. In his appeal petition, Mr. Kassel states that he “did not ask for information that pertains to any named individuals or that could therefore possibly constitute an invasion of anyone's privacy,” and suggests that “DDS could satisfy my records request by providing aggregate information on the total number of people who have died according to various causes.” Subsequent to the opening of this appeal, in a conversation with a staff attorney of the Public Records Division, you indicated that the Department would provide a supplemental response addressing whether the Department can produce aggregate data. This office encourages the parties to communicate to facilitate providing responsive records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii) (an agency or municipality shall 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). Conclusion Accordingly, whereas the Department has indicated that it intends to provide a supplemental response, I will consider this administrative appeal closed. Said response must be made in accordance with the Public Records Law and its Access Regulations. It is preferable to send an electronic copy of this response to this office at pre@sec.state.me.us. Mr. Kassel may appeal the substantive nature of the Department’s response within 90 days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: David Kassel