Corey Kelleher v. Department of Children and Families (SPR 20241998)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 26, 2024 SPR24/1998 Steven S. Treat, Esq. Records Access Officer 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 Corey Kelleher 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 May 16, 2024, Mr. Kelleher requested “2014-2024 . . . any and all records filed under Kelleher or and [sic] other aliases the that [sic] was used by any examples Souza, De Souza, Sousa, Da Cruz, De Cruz or Cruz. All . . . records . . . for [four identified individuals][.]” The Department responded on May 16, 2024, and on July 12, 2024. Unsatisfied with the Department’s responses, Mr. Kelleher petitioned this office and this appeal, SPR24/1998, was opened as a result. While this appeal was pending, the Department submitted a supplemental response on July 22, 2024. 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. SPR24/1998 Page 2 July 26, 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. 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. Purpose of request; Identity of 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, Mr. Kelleher’s purpose in making the request has no bearing on the public status of any existing responsive records. The Department’s May 16th and July 12th Responses On May 16, 2024, a representative from the Department stated, “[y]our request is being processed and can take at least 45 business days to be returned.” On July 12, 2024, a representative from the Department stated, “your record is currently with the redactor. I have reached out looking for an update. As soon as I hear back, I will reach out to let you know the status.” Current Appeal In his appeal petition, Mr. Kelleher states, “I have requested [records] . . . and DCF is redacting the requested information and is not providing all required and requested information.” He further explains that his “first request follow-up said it was going to take at least 45 days” and that his “second follow up now said it’s with the redactor and they’re going to follow up.” The Department’s July 22nd Supplemental Response In its July 22, 2024 response, the Department states that Mr. Kelleher’s “request is being processed by DCF North Central Area Office (“Area Office”)” and that “[t]he Area Office will respond to [Mr. Kelleher] directly within 30 calendar days.” The Department further explains that, “[i]n the event [Mr. Kelleher] [does] not receive a response within this time period,” he should “contact the Area Office for more information.” Timeline for Providing Responsive Records The Office is advised that G. L. c. 66, § 10(b) provides, in pertinent part, that if the magnitude or difficulty of a request unduly burdens the other responsibilities of the agency or

Steven S. Treat, Esq. SPR24/1998 Page 3 July 26, 2024 municipality such that the agency or municipality cannot provide records within 10 business days, the agency or municipality must inform the requestor in writing within 10 business days. With respect to the timeframe to produce responsive records, the written response shall: identify a reasonable timeframe in which the agency or municipality shall produce the public records sought; provided, that for an agency, the timeframe shall not exceed 15 business days following the initial receipt of the request for public records ... and provided further, that the requestor may voluntarily agree to a response date beyond the timeframes set forth herein. G. L. c. 66, § 10(b)(vi). Where Mr. Kelleher’s request was submitted on May 16, 2024, and the Office has not provided responsive records pertaining to the request, I find the Office has not met its burden in responding to the request in accordance with G. L. c. 66, § 10(b)(vi). Consequently, I find the Office must provide an estimated date as to when it intends to complete the search and provide the outstanding records. See G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). To the extent possible, the Office must provide responsive records on a rolling basis. Conclusion Accordingly, the Office is ordered to provide Mr. Kelleher 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: Corey Kelleher Adam J. Smith