David S. Kassel v. Department of Developmental Services (SPR 20232314)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 12, 2023 SPR23/2314 Gabriella K. Eisner, Esq. Assistant General Counsel Department of Developmental Services 1000 Washington Street Boston, MA 02118 Dear Attorney Eisner: I have received the petition of David Kassel appealing the response of the Department of Developmental Services (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 12, 2023, Mr. Kassel requested: [1] The census at the Wrentham Development Center and the census at the Hogan Regional Center each year from Fiscal Year 2022 to the present; [2] Projections and/or plans concerning the future census and/or closure of the Wrentham Development Center and/or the Hogan Regional Center; [3] The census and/or capacity of state-operated group homes each year from Fiscal Year 2019 to the present; [4a] The number of vacancies in the state-operated group homes each year from Fiscal Year 2019 to the present; [4b] The number of [Department operated] group homes that have been closed since August 2021, and the number of homes that have subsequently reopened; and, [5] The current total number of state-operated group homes. On September 26, 2023, the Department provided Mr. Kassel with a response. The Department provided information pertaining to Items 1, 3, 4 and 5. The Department also informed Mr. Kassel that it does not have any records responsive to Item 2. As a result of the Department’s September 26th response, Mr. Kassel petitioned the Supervisor of Records, and this appeal was opened. While this appeal was pending, the Department provided a supplemental response on October 6, 2023. 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

Gabriella K. Eisner, Esq. SPR23/2314 Page 2 October 12, 2023 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). 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. Current appeal Upon review of the file, it appears Mr. Kassel’s appeal takes issue with the Department’s responses regarding Items 3, 4(a), 4(b) and 5. The Department’s September 26th response In its September 26, 2023 response to Items 3, 4(a), 4(b) and 5, the Department states the following: Item 3 The capacity of beds in state-operated group homes is as follows: The total capacity for Fiscal Year 2019 was 1,173. The total capacity for Fiscal Year 2020 was 1,169. The total capacity for Fiscal Year 2021 was 1,157. The total capacity for Fiscal Year 2022 was 1,133. The total capacity for Fiscal Year 2023 was 1,131. In his petition, Mr. Kassel states, “[m]y PRR requested information on the census “and/or” capacity of the state-operated group homes. DDS provided information only on the capacity of the homes, and not on the census in those facilities. Their response, in fact, did not address the request for information on the census in the homes. The term “and/or” in my PRR was intended to elicit information on both the census and capacity of those facilities, if such

Gabriella K. Eisner, Esq. SPR23/2314 Page 3 October 12, 2023 information exists. Just to be clear, had I intended to leave it to the Department’s discretion as to which set of information to provide, I would have stated “or” rather than “and/or.” In light of the above, it is unclear if the Department possess records responsive to the census information as requested. 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). Item 4(a) Regarding the above, the Department indicated that it “. . . does not have any responsive records pertaining to the number of vacancies in the state-operated group homes each year from Fiscal Year 2019 to the present. The Department can provide the number of vacancies in state- operated group homes as of June 30, 2023, which is 91.” In his petition, Mr. Kassel states “[o]n September 26, I asked DDS to clarify whether the Department has any records subsequent to July 1, 2019 and prior to June 30, 2023, pertaining to the number of vacancies in group homes, and, if so, to please provide that information. To date, I have not received a response to my September 26 request.” In light of the above, where Mr. Kassel requested “[t]he number of vacancies in the state- operated group homes each year from Fiscal Year 2019 to the present,” and the Department provided “. . . the number of vacancies in state-operated group homes as of June 30, 2023, which is 91[,]” it is unclear if the Department possess records for “each year from Fiscal Year 2019 to the present” as requested. 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 must clarify this. Items 4(b) and 5 Regarding Item 4(b), the Department responded, “[t]he Department has closed twelve (12) state-operated group homes between August 2021 and September 12, 2023, the date of your PRR. Three (3) state operated group homes have subsequently reopened.” For Item 5, the Department stated, “[t]he total number of state-operated group homes as of September 12, 2023 (date of PRR) is 251.” In his petition, Mr. Kassel states the following: On January 18, 2023, DDS responded to a previous PRR from me (attached), stating: “The Department has closed seven (7) state-operated group homes between August 2021 and January 3, 2023, the date of your public records request. One (1) state-operated group home has subsequently reopened...The total number of state-operated group homes as of January 3, 2023 (date of request) is

Gabriella K. Eisner, Esq. SPR23/2314 Page 4 October 12, 2023 250.” The January 18, 2023 response indicates that a net of 6 state-run homes was closed between August 2021 and January 2023, leaving 250 homes remaining. The September 2023 response indicates that a net of 9 homes was closed between August 2021 and September 2023, leaving 251 homes remaining. The implication of the January 18 response is that 256 homes existed in August 2021, whereas the implication of the September 26 response is that 260 homes existed as of August 2021. I am requesting that DDS provide clarification in order to account for the apparent difference between the two responses in the number of homes that existed as of August 2021. Where the September 26th response pertains to the September 12th request, I decline to opine on the Department’s January 18th response to a previous request. I encourage the parties to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii) (an agency 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 to produce records sought more efficiently and affordably). In accordance with the Public Records Law; however, 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). Conclusion Accordingly, the Department is ordered to provide Mr. Kassel with a response to his 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. Mr. Kassel may appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: David S. Kassel