Wayne Willis v. Department of Developmental Services (SPR 20211006)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 4, 2021 SPR21/1006 Erin G. Brown, Esq. Assistant General Counsel Executive Office of Health & Human Services Department of Development Services 1000 Washington Street Boston, MA 02118 Dear Attorney Brown: I have received the petition of Wayne Willis appealing the response of the Department of Development Services (Department) to a request for public records. G. L. c. 66, § l0A; see also 950 C.M.R. 32.08(1).On April 10, 2021, Mr. Willis requested certain medical evaluation records. On April 20, 2021, the Department responded. Unsatisfied with the Department’s response, Mr. Willis petitioned this office and SPR21/1006 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 Department 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(d)(iv) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based…”); 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). 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

Erin G. Brown, Esq. SPR21/1006 Page 2 May 4, 2021 Status of the requestor; reason for the request Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See G. L. c. 66, § 10(a); see also Bougas v. Chief of Police of ----------------------- Lexington, 371 Mass. 59, 64 (1976). Therefore, Mr. Willis’ interest in obtaining the records shall have no bearing on the public nature of the record. Where Mr. Willis seeks the record for an administrative process, he may have a unique right of access to the records through statutory, regulatory, judicial or other applicable means. See Commonwealth v. Wanis, 426 Mass. 639 (1998). As such, Mr. Willis may wish to consider another means of seeking to obtain any existing responsive records. The Department’s April 20th Response In its April 20th response, the Department indicated that the requested records are exempt from disclosure pursuant to Exemptions (a), (c), (e) and (l) of the Public Records Law. In a telephone conference between a Department representative and a staff attorney, the Department advised that Mr. Willis has filed an appeal with the Department known as Appeal of 2019-2020 Individual Support Plan (ISP) and Plan of Care (POC)” docketed as DDS2020-0041, and “Appeal of 2018-2019 ISP Modification” docketed as DDS2019-0281. The Department confirmed that the proceedings are related to the requested records. Active Administrative Proceeding 950 C.M.R. 32.06(1)(g) provides in pertinent part: a request for records in which an individual, or representative of the individual has a unique right of access by statutory, regulatory, judicial or other applicable means, shall not be considered a request for public records 950 C.M.R. 32.08(2)(b) provides in pertinent part: the Supervisor may deny an appeal for, among other reasons if, in the opinion of the Supervisor: 1. the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation. In light of the pending matter, I decline to opine on this matter at this time. See 950 C.M.R. 32.08(2)(b). It should be noted that a change in the status of this action could impact the applicability of 950 C.M.R. 32.08(2)(b).

Erin G. Brown, Esq. SPR21/1006 Page 3 May 4, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: Wayne Willis