Ed Underwood v. Department of Developmental Services (SPR 20241859)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 10, 2024 SPR24/1859 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 Ed Underwood 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 February 13, 2024, Mr. Underwood requested, “documentation regarding how DDS determines the reimbursement rate to Community Based Day Support (CBDS) programs for specific individuals…” Prior Appeal This request was the subject of a prior appeal. See SPR24/0823 Determination of the Supervisor of Records (March 29, 2024). In my March 29th determination, it was my understanding that the Department intended to provide a further response to Mr. Underwood to address his records request. The Department responded on April 11, 2024. Unsatisfied with the response, Mr. Underwood petitioned this office and this appeal, SPR24/1859, 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 town 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 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. SPR24/1859 Page 2 July 10, 2024 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 April 11th response In its April 11, 2024 response, the Department cited Exemption (l) of the Public Records Law to withhold records. Current Appeal In his appeal, Mr. Underwood states the following: The CDAT is not completed by the disabled individual. The CDAT does not require the disabled individual to answer any questions or perform any tasks. The disabled individual is a passive participant simply being observed by another person in a typical environment. It is completed by the DDS or their delegate (typically the entity providing traditional services) and involves a 3rd party’s observation of and judgement about the disabled individual. For DDS to suggest that an individual with intellectual/developmental disabilities could manipulate the process is a stretch. … DDS and I agree that the purpose of the exemption is an important factor in determining whether it is a valid reason for not allowing the PRR. What DDS is not being transparent about is that there is no “answer key” with right and wrong answers to the CDAT. The CDAT is not a “test” with “questions and answers” of the type that this exemption is intended to protect. … DDS is taking the position that any document that has the word test, evaluation or assessment in its name should be protected by this exemption. DDS is ignoring the overall guidance that precedes the exemptions and states that the exemptions are to be “strictly and narrowly construed” which means that the explicitly stated intent or purpose of the exception needs to be paid attention to and should be used to limit the application of each exemption when appropriate. In this case, the application of the exemption should be disallowed since allowing the exemption would be contrary to the stated purpose of that exemption. …

Gabriella K. Eisner, Esq. SPR24/1859 Page 3 July 10, 2024 Exemption (l) Exemption (l) permits the withholding of records that are: questions and answers, scoring keys and sheets and other materials used to develop, administer or score a test, examination or assessment instrument; provided, however, that such materials are intended to be used for another test, examination or assessment instrument G. L. c. 4, § 7(26)(l). There are no authoritative Massachusetts decisions interpreting Exemption (l). The general purpose of Exemption (l) is to prevent individuals from gaining an unfair advantage by accessing test questions and test answers prior to the administration of an examination. As long as the same materials are used to administer subsequent examinations, the custodian of records may continue to withhold the materials pursuant to Exemption (l). Under Exemption (l), the Department states the following: On its face, exemption (l) explicitly includes assessment instruments. The Legislature could have limited the application of exemption (l) to a discreet type of examination. To the contrary, the exemption was written broadly to include a variety of tests, evaluations, and assessments. In [Mr. Underwood’s] appeal, [he] argue[s] that exemption (l) only applies to instruments that test an individual’s knowledge and have objectively correct/incorrect answers and that the exemption cannot apply when a third party administers the test, examination, or assessment. However, there is no support for these arguments. The language of the exemption does not speak of testing knowledge or of a requirement for objectively correct/incorrect answers. Moreover, these arguments contradict the meaning of the word “assessment”: “the action or an instance of making a judgment about something: the act of assessing something.”… Although there are self-assessments, an assessment is usually done by a third party to evaluate someone else or something else. … Access to the CDAT assessment tool and the Scoring Matrix would give an individual an unfair advantage. The CDAT has been developed by DDS to assess the support needs of individuals who will be participating in CBDS services. The information from the CDAT, in conjunction with the Scoring Matrix, is used to determine the CBDS Rate Level. The CBDS Rate Level corresponds with the amount of funding that the individual will receive. An individual could use the CDAT tool and Scoring Matrix to manipulate the outcome of the assessment in order to get increased funding. DDS is a steward of public funds and has a duty to administer those funds responsibly. Moreover, DDS has a limited amount of

Gabriella K. Eisner, Esq. SPR24/1859 Page 4 July 10, 2024 funding and wants the distribution of the funds to be fair and equitable. The CDAT is a tool that DDS intends to use in the future; however, if DDS were forced to make the CDAT instrument and Scoring Matrix public, the future use of the assessment would be jeopardized. In camera inspection In order to facilitate a determination as to the applicability of the Exemption (l) claim made by the Department to withhold the responsive records, the Department must provide this office with an un-redacted copy of the records for in camera inspection. See 950 C.M.R. 32.08(4). After I complete my review of the record, I will return the record to the Department’s custody and issue an opinion on the public or exempt nature of the record. The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Mass. Comm’n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. Please be aware, any cover letter submitted to accompany the relevant records may be subject to disclosure. Order Accordingly, the Department is ordered to provide this office with an un-redacted copy of the responsive records for in camera inspection without delay.

Gabriella K. Eisner, Esq. SPR24/1859 Page 5 July 10, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Ed Underwood