David S. Kassel v. Department of Developmental Services (SPR 20201602)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 22, 2020 SPR20/1602 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.” Prior Appeal This request has been the subject of a prior appeal. See SPR20/1252 Determination of the Supervisor of Records (August 10, 2020). I closed my August 10th determination on the understanding that the Department would provide a supplemental response regarding whether it could produce aggregate data responsive to Mr. Kassel’s request. The Department provided this supplemental response on September 3, 2020, indicating that it does not possess records containing aggregates of the data sought by Mr. Kassel. Unsatisfied with the Department’s response, Mr. Kassel petitioned this office and this appeal, SPR20/1602, 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). 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. SPR20/1602 Page 2 September 22, 2020 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. Current Appeal In its September 3, 2020 response, the Department states that it “is not the custodian of an existing public record that provides such aggregate data on the total number of DDS client that have died and the various causes of death they may have passed away from during the period relevant to your PRR (i.e., January 1, 2020 to July 9, 2020).” The Department further explains that “[i]nformation on DDS clients that have died and their presumed cause of death as reported to DDS, is maintained in their confidential client record.” In his appeal petition, Mr. Kassel argues that “aggregating data from existing records does not constitute creating a new record.” He further suggests that “[t]he Department could either choose to provide each cause of death to us in each individual's existing record, with all other identifying information redacted, or could choose to list the numbers of deaths and their causes in a separate record.” No Duty to Create Records Please be advised, under the Public Records Law a custodian is not required to create a record in response to a public records request. See G. L. c. 66, §6A(d). In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See 32 Op. Atty Gen. 157, 165 (May 18, 1977). 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). However, under the Public Records Law, “furnishing a segregable portion of a public record shall not be deemed to be creation of a new record. This applies to a responsive record in the form of an extract of existing data, as such data exists at the time of the request and is segregable from nonresponsive and exempt data.” 950 C.M.R. 32.07(1)(f). Based on the Department’s response, it appears that the Department does possess cause of death information, although not in aggregated form. Where the Department can redact the remainder of the client records that contain this information, it is unclear how providing this information would require “creation of a new record” as set forth in 905 C.M.R. 32.07(1)(f). Therefore, I find that the Department has not met its burden in responding to this request.

James Bergeron, Esq. SPR20/1602 Page 3 September 22, 2020 Conclusion Accordingly, the Department is ordered to provide Mr. Kassel with a response to the request, provided in a manner consistent with this order the Public Records Law and its Access 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.me.us. Sincerely, Rebecca S. Murray Supervisor of Records cc: David Kassel