Lucas Newbill v. Department of Children and Families (SPR 20232703)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 21, 2023 SPR23/2703 Steven S. Treat, Esq. Assistant General Counsel Department of Children and Families 600 Washington Street, 6th Floor Boston, MA 02111 Dear Attorney Treat: I have received the petition of Lucas Newbill, Esq., of The Law Offices of Lucas Newbill, 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 23, 2023, Attorney Newbill requested, “…copies of all documents, communications, and electronically- stored information (ESI) concerning my client. . . . Please be sure to include any communications regarding [the identified individual] with persons outside the Department.” On November 6, 2023, the Department provided a response, denying access to the responsive records pursuant to Exemption (a) of the Public Records Law. G. L. c. 4, § 7(26)(a). Unsatisfied with the Department’s response, Attorney Newbill petitioned this office and this appeal, SPR23/2703, was opened as a result. Status of the Requestor 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 Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Attorney Newbill’s status will play no role in a determination as to whether the records should be disclosed or redacted under the Public Records Law. As such, Attorney Newbill may wish to consider another means of seeking to obtain any existing responsive records. 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. SPR23/2703 Page 2 November 21, 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. The Department’s November 6th response In its November 6, 2023 response, the Department stated: [y]ou seek [Department] case records and communications pertaining to a named individual. Such records are exempt from public disclosure, therefore, [the Department is] denying your request under [P]ublic [R]ecords [L]aw. The laws that prohibit the disclosure of this information include, but not limited to: G. L. c. 119, §§ 51E, 51F; G. L. c. 112, §§ 135-135B … 110 C.M.R … Further, G. L. c. 119, § 51E requires [the Department] to maintain a file of reports prepared under G. L. c. 119, § 51A through 51E. The statute, however, requires that this information is kept confidential … Similarly, G. L. c. 119, § 51F requires that any information contained in a central registry of information created by [the Department] shall be confidential and may only be disclosed to statutorily enumerated parties, including [the Office of the Child Advocate … Lastly, while these records are not subject to disclosure under the [P]ublic [R]ecords [L]aw, you may have a unique right of access … pursuant to 110 C.M.R. 12.09. Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are:

Steven S. Treat, Esq. SPR23/2703 Page 3 November 21, 2023 specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7(26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public’s right to inspect records under the Public Records Law is restricted. See Att’y Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either “shall not be a public record,” “shall be kept confidential” or “shall not be subject to the disclosure provision of the Public Records Law.” The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. The Department cites G. L. c. 119, §§ 51E, 51F, which provide in relevant part: The department shall maintain a file of the written reports prepared under this section and sections 51A to 51D, inclusive. These written reports shall be confidential. Upon request and with the approval of the commissioner, copies of written reports of initial investigations may be provided to: (i) the child’s parent, guardian, or counsel, (ii) the reporting person or agency, (iii) the appropriate review board, (iv) a child welfare agency of another state for the purpose of assisting that agency in determining whether to approve a prospective foster or adoptive parent, or (v) a social worker assigned to the case. No such report shall be made available to any persons other than those specified in this section without the written and informed consent of the child’s parent or guardian, the written approval of the commissioner, or an order of a court of competent jurisdiction. G. L. c. 119, § 51E. The department shall maintain a central registry of information sufficient to identify children whose names are reported under sections 51A to 51B. Data and information relating to individual cases in the central registry shall be confidential and shall be made available only with the approval of the commissioner or upon court order. G. L. c. 119, § 51F.

Steven S. Treat, Esq. SPR23/2703 Page 4 November 21, 2023 In addition, the Department cited G. L. c. 112, §§ 135-135B which pertains to privileged communications between a social worker/client communications. All communications between a social worker licensed pursuant to the provisions of section one hundred and thirty-two or a social worker employed in a state, county or municipal governmental agency, and a client are confidential. . . . No such social worker, colleague, agent or employee of any social worker, whether professional, clerical, academic or therapeutic, shall disclose any information acquired or revealed in the course of or in connection with the performance of the social worker’s professional services, including the fact, circumstances, findings or records of such services. G. L. c. 112, § 135A. Except as hereinafter provided, in any court proceeding and in any proceeding preliminary thereto and in legislative and administrative proceedings, a client shall have the privilege of refusing to disclose and of preventing a witness from disclosing, any communication, wherever made, between said client and a social worker licensed pursuant to the provisions of section one hundred and thirty-two of chapter one hundred and twelve, or a social worker employed in a state, county or municipal governmental agency, relative to the diagnosis or treatment of the client's mental or emotional condition… G. L. c. 112, § 135B. Based on the Department’s November 6th response, I find the Department has met its burden to withhold records that are restricted under the above referenced statutes, as they operate through Exemption (a) of the Public Records Law. Conclusion Accordingly, whereas the Department has met its burden under the Public Records Law, I will consider this administrative appeal closed. Sincerely, Manza Arthur Supervisor of Records cc: Lucas Newbill, Esq.