Shoshonna Walter v. Department of Children and Families (SPR 20222656)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 9, 2022 SPR22/2656 Steven S. Treat, Esq. Assistant General Counsel Records Access Officer Department of Children and Families 600 Washington Street, 6th Floor Boston, MA 02111 Dear Attorney Treat: I have received the petition of Shoshana Walter, of Reveal News from The Center for Investigative Reporting, appealing the response of the Department of Children and Families (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 7, 2022, Ms. Walter requested the following public records: Non-confidential data gathered by the Department of Children and Families on reports of substance-exposed infants, specifically a count of cases in your database involving the reporting of a substance-exposed infant for which the narrative field or fields pertaining to the initial report contain(s) one or more of the following regular expressions. These were not composed with case sensitivity in mind. . . . The Department provided Ms. Walter with a response on October 19, 2022. As a result of The Department’s October 19th response, Ms. Walter petitioned the Supervisor of Records (Supervisor), and this appeal was opened. 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 agency or municipality 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

Steven S. Treat, Esq. SPR22/2656 Page 2 December 9, 2022 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) (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). 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 October 19th Response The Department’s October 19, 2022 response asserts: [The Department] does not have a report that contains the information that [Reveal News] seek[s]. An agency is not required to create a new record in order to respond to a public records request. G. L. c. 66, § 6A(d). See G. L. c. 4, § 7, cl. 26; See id. (defining public records as materials which have already been made or received by a public entity); see also 32 Op. Att’y Gen. 157, 165 (May 18, 1977) (custodian is not obliged to create a record in response to a request for information). Specifically, [the Department] does not have a report that reflects substance-exposed infants cases for which narrative fields contain the three listed terms above. [The Department] now considers this request closed. Ms. Walter and Reveal News/Center for Investigative Reporting did not appeal the Department’s prior responses regarding the requested records or information; however in filing this appeal regarding the Department’s October 19th response, Ms. Walter provided prior communications to illustrate its efforts to work with the Department. In a June 29, 2022 email to Ms. Walters and Reveal News, the Department asserts: [The Department] had an opportunity to discuss your request with [the Department’s] information technology leadership. It was determined that it would take, approximately, more than 100 hours of labor from skilled workers trained in information technology to de-normalize hundreds of database columns in order to run your query. Additionally, because of the way [the Department’s] databases are stored, the searches would need to be run in off peak hours. Finally, concerns were discussed that the output of such query would most certainly under/over- report the prevalence of the given variable(s). After giving your request further consideration, [the Department] has determined that it does not have the resources to fulfill your request. Your request would

Steven S. Treat, Esq. SPR22/2656 Page 3 December 9, 2022 require advanced skills in programming and coding; consequently, fulfilling your request would constitute creation of a new record… [the Department] is not obligated to create a new record to respond to a public records request. Based on the Department’s October 19th response to Ms. Walter’s October 7th request, it remains unclear why the Department claims that extracting information from a database to provide Ms. Walter with the responsive records/information is a creation of a record. Specifically, where the Department may extract some or all of the responsive information to satisfy Ms. Walter’s request, the Department is advised that extracting records or information from records that are already in existence and in its possession, custody, or control, is not creation of a record. 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). The Department is directed to a 2020 Supreme Judicial Court of Massachusetts (Court) decision relative to creating a record versus extraction of information from databases in order to produce records or information in response to a public records request. In Att’y Gen. v. Dist. Attorney for the Plymouth Dist., et al. (Plymouth Dist.), the Court stated: …where public records are in electronic form, as they increasingly are and will be, a public records request that requires a government entity to search its electronic database to extract requested data does not mean that the extracted data constitute the creation of a new record under the public records law. This interpretation of the public records law is supported by the regulations promulgated by the supervisor, who is required to adopt regulations to implement the public records law. Plymouth Dist., 484 Mass. 260, 275 (2020). The Department is advised that, 950 C.M.R. 32.07(1)(f) also provides that “[f]urnishing 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.” Based on the Department’s October 19th response, I find that the Department did not meet its burden in responding to this request. Reasonable modification; Offer to assist the requestor to modify the request In the November 17, 2022 petition to the Supervisor, Ms. Walter, through Reveal News/Center for Investigative Reporting (CIR), indicates, “…despite CIR’s expressed willingness to work within the [Department’s] database constraints and confidentiality concerns, [the Department] did not offer any alternative suggestions or recommendations in modifying the scope of the request to reasonably fit within [the Department’s] resource limitations in compiling

Steven S. Treat, Esq. SPR22/2656 Page 4 December 9, 2022 the existing data.” In addition, the requestor further asserts, “[t]hus given CIR’s willingness to comply with G. L. c. 66, § 10(d), CIR’s previous helpful scope modification, and CIR’s proposed code written specifically to query the [Department’s] database, the request is not unreasonably burdensome or out of character as to be beyond the [Department’s] resource capabilities to fulfill.” The Department is advised, “[a] records access officer shall, when appropriate, 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.” See 950 C.M.R. 32.06(2)(g). It is unclear whether the Department has suggested any reasonable modifications to the scope of the request, or offered to assist the requestor to modify the request in order for the Department to produce the requested information. Ms. Walter may wish to narrow or modify the request by providing the Department with a timeframe in which the Department may search for the requested information. Conclusion Accordingly, the Department is ordered to provide Ms. Walter with a response to her request 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 the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Shoshana Walter