Laura H. Ortiz v. Department of Children and Families (SPR 20241069)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 25, 2024 SPR24/1069 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.” Prior Appeal This request was the subject of a prior appeal. See SPR23/3073 Determination of the Supervisor of Records (January 5, 2024). In my January 5th determination, I found that it was unclear if the Department possesses additional records responsive to the request The Department provided a response on January 17, 2024. Unsatisfied with the response, Ms. Ortiz petitioned this office and this appeal, SPR24/1069, 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 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. SPR24/1069 Page 2 April 25, 2024 must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. The Department’s January 17th response In its January 17, 2024 response, the Department provided additional records and stated, “[o]n December 19, 2023, DCF produced 140 pages of records responsive to [Ms. Ortiz’s] request and referred [her] to Federal Reports posted on DCF website… Please be advised, the records produced and referenced in DCF’s December 19, 2023 response are responsive to [Ms. Ortiz’s] request regarding federal grants. These reports are submitted to the federal government as a pre-requisite to receive various federal grant funds referenced within the reports. DCF has no responsive records as to [her] request for federal grant application reimbursement contracts in its custody or control. After further review, DCF has identified the enclosed records (119 pages) as potentially responsive to [her] request regarding federal reimbursement. The records include the State Plans and amendments submitted to the federal government pursuant to Title IV-E of the Social Security Act (‘Title IV-E’) as required to receive federal reimbursement funds under Title IV-E.” Current appeal In her appeal, Ms. Ortiz states the following: The RAO admits that the records we seek exist “DCF grant applications to the federal government, including terms...” exist and as shown in its produced records responses… that additional records could and should have been produced, yet DCF instead failed to state amount of withheld responsive records of the records existing or under what exemption… DCF was reimbursed $350,296,867.96 per the MA Comptroller’s CTHRU website by the federal government this 2023 year so far and approximately $400,000,000 each for 2020, 2021 and 2022 (totaling over 1.5 trillion dollars in federal grant reimbursements). These federal grant application reimbursement contracts exist and per the MA Comptroller are in DCF’s custody, possession and control, and that the MA Comptrollers office only receives a DCF self agency reporting per their MA Comptroller RAO, so would not have been ever given any copies of these federal grant reimbursement contracts. None of DCF’s responses address why these federal grant application records were not produced to us at all[.] Unclear if additional records exist Based on 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

Steven S. Treat, Esq. SPR24/1069 Page 3 April 25, 2024 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