David S. Kassel v. Department of Developmental Services (SPR 20241535)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 4, 2024 SPR24/1535 Gabriella Eisner, Esq. Assistant General Counsel Records Access Officer 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 April 24, 2024, Mr. Kassel requested the following: 1. Documents referring to or containing current DDS policies regarding admissions to the Wrentham Developmental Center (Wrentham) and Hogan Regional Center (Hogan) and state-operated group homes in Massachusetts. . . . 2. Documents containing data showing the census at Wrentham and Hogan as of June 30, 2022; June 30, 2023; and April 24, 2024. 3. Documents containing data showing the census, capacity, and number of vacancies in state-operated group homes as of June 30, 2022; June 30, 2023, and April 24, 2024. 4. Projections and plans concerning the future census and closure of Wrentham and Hogan and the state-operated group homes. The Department responded on May 15, 2024, providing numerous responsive records, and indicating it does not possess records of the “number of vacancies in state-operated group homes” responsive to Part 3 of the request. Unsatisfied with the Department’s response, and claiming the Department possesses additional responsive records, Mr. Kassel appealed, and this case was opened as a result. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all 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 Eisner, Esq. SPR24/1535 Page 2 June 4, 2024 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. 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 May 15th Response In its May 15, 2024 response, the Department provides numerous responsive records. With regard to Part 3 of the request, the Department explains the following: Vacancies: As stated in its previous PRR response to [Mr. Kassel] dated November 13, 2023, DDS does not have in its possession, custody, or control the state-operated group home vacancies as of June 30, 2022 or June 30, 2023. DDS also does not have in its possession, custody, or control the state-operated group home vacancies as of April 24, 2024. Vacancies are not tracked by the Department independently from the capacity and census data provided.... Vacancy numbers are more complicated as they are dependent on a number of real time factors, including but not limited to the temporary placement needs of individuals, staffing, and other group home demographics. Current Appeal In his appeal petition, Mr. Kassel contends that the Department possesses additional records responsive to Part 3 of his request. Specifically, he contends that the Department’s response “is confusing and ambiguous as to whether DDS actually tracks and has records concerning vacancies in its state-run group homes.” He further contends that the Department’s response “implies that the Department has some methodology for tracking vacancy numbers, or, at least, has a means of determining approximate numbers of vacancies.” Additionally, he argues that it is “hard to believe that DDS would not know or keep track of whether vacancies exist in the group home system that it directly manages.”

Gabriella Eisner, Esq. SPR24/1535 Page 3 June 4, 2024 Records in Existence Please be advised that 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). Further, in accordance with the Public Records Law, 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). However, under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). In a telephone conversation with this office on May 23, 2024, the Department confirmed that it does not possess additional records responsive to Part 3 of the request. Conclusion Where the Department confirmed that it does not possess additional records responsive to Mr. Kassel’s request, I will now consider this administrative appeal closed. Sincerely, Manza Arthur Supervisor of Records cc: David Kassel