David S. Kassel v. Department of Developmental Services (SPR 20212498)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 8, 2021 SPR21/2498 Brian Fleming Assistant General Counsel/ Records Access Officer Executive Office of Health & Human Services Department of Development Services 1000 Washington Street Boston, MA 02118 Dear Attorney Fleming: I have received the petition of David Kassel of the Massachusetts Coalition of Families and Advocates 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 August 12, 2021, Mr. Kassel requested the “… number of individuals living in DDS state-operated group homes from Fiscal Year 2008 to the present, the number of individuals admitted to, and discharged from those group homes to other settings, and the number of deaths of residents in those group homes in each year.” On September 21, 2021, the Department responded. Unsatisfied with the Department’s response, Mr. Kassel petitioned this office and SPR21/2498 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(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 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

Brian Fleming, Esq. SPR21/2498 Page 2 October 8, 2021 burden of establishing the applicability of an exemption). If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Department’s September 21st Response In its September 21st response, the Department produced documents in response to Mr. Kassel’s request. Current appeal In his appeal, Mr. Kassel asserted, “… the mortality information in reports rang[ed] from calendar years 2008 through 2015 only. There does not appear to be any more recent information available on the website. As noted, I requested that information from 2008 to the present. In addition, the mortality information provided in the 2015 report relating to DDS residential settings does not appear to specify the number of deaths in state-operated group homes that year.” Based on Mr. Kassel’s appeal, in conjunction with the Department’s response, it is unclear if the Department possesses any additional records responsive to his request. 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). Custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). Consequently, the Department must clarify whether additional records exist. 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 Regulations within ten (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. Sincerely, Rebecca S. Murray Supervisor of Records cc: David Kassel