Laura H. Ortiz v. Department of Children and Families (SPR 20233073)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 5, 2024 SPR23/3073 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 Laura Ortiz, appealing the response of the Department of Children and Families (Department/DCF) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 30, 2023, Ms. Ortiz requested “a copy of all of the DCF grant applications to the federal government.” The Department provided a response on December 14, 2023. Unsatisfied with the response, Ms. Ortiz petitioned this office and this appeal, SPR23/3073, 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 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); 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). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. Current appeal In her appeal, Ms. Ortiz states that she “asked DCF on 12/14/23 to produce instead 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

Steven S. Treat, Esq. SPR23/3073 Page 2 January 5, 2024 actual records [she] requested, yet [DCF] is refusing to do so and wants to continue illegally substituting out non responsive records[.]” The Department’s December 14th response In its December 14, 2023 response, the Department provided Ms. Ortiz with 140 pages of records and stated that it “has not withheld or redacted any records in [its] response.” Unclear if additional records exist Based on the Department’s response and Ms. Ortiz’s appeal, it is unclear if the Department possesses additional records responsive to the 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 Ms. Ortiz 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 the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Laura Ortiz