Joseph Oathout v. Department of Children and Families (SPR 20242176)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 15, 2024 SPR24/2176 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 Joseph Oathout 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 June 24, 2024, Mr. Oathout requested: [T]he medical claims billing ID number that was used for [a named individual] and any medical billing claims for her care while she was a ward of the state of Massachusetts between 2/1/2013 and 12/31/2016. The Medical Billing Claims should be on file with Medicaid as MassHealth is a part of CFS (Children and Family Services.) The Department provided a response on July 8, 2024. Unsatisfied with the Department’s response, Mr. Oathout petitioned this office and this appeal, SPR24/2176, 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. SPR24/2176 Page 2 August 15, 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. The Department’s July 8th Response In its July 8, 2024 response, the Department states, “MassHealth claims are processed by the Executive Office of Health and Human Services (EOHHS) Secretariat…. To obtain information pertaining to Masshealth claims, I suggest you submit your request to EOHHS.” In an email to the Department on July 9, 2024, Mr. Oathout clarified his request. He states, “[1] Medicaid ID. As [named individual’s] [c]aregivers (ward of the State) DCG has that ID and the associated ID Number. I assume that DCF does not dispute this portion of the request? [2] Medical Records. I think here there needs to be clarification. What we are looking for SPECIFICALLY, is only those claims that were approved by DCF to provide Care through her Medicaid. We have reason to believe that claims that were not submitted to DCF for approval may exist and want to compare those that were approved to all [claims] submitted to masshealth.” The Department responded to Mr. Oathout on July 9, 2024. The Department stated, “[u]nfortunately DCF does not keep medical billing records, so I have nothing to provide pertaining to MassHealth/Medicaid records. The costs incurred for medical expenses for children in DCF care or custody at hospital facilities are incurred by other agencies; such as, MassHealth. If MassHealth claims were made on behalf of [named individual], they would have been made by MassHealth without DCF involvement.” Current Appeal In his appeal to this office, Mr. Oathout states, “I provided clarification on the request, [n]arrowly tailoring it to only those records that ONLY DCF can provide and not MassHealth. Only DCF is aware of what Claims were submitted on Behalf of [named individual] and her Family that were approved by someone at the department. We would ask for those records and the approvals of those requests to include staff member who approved such care. Since the original request was not so narrowly focused, I provided that DCF should consider this clarification as an appeal.” Possession, Custody, or Control The Department is 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).

Steven S. Treat, Esq. SPR24/2176 Page 3 August 15, 2024 In light of the clarification provided by Mr. Oathout, I find the Department must clarify whether the Department possesses any records responsive to his request. Specifically, the Department must clarify whether it possesses records regarding claims approved by the Department and submitted on behalf of the identified individual. If the Department does possess responsive records, it must either provide the records, or cite an exemption to the Public Records Law, and explain with specificity how such an exemption applies to withhold or redact the records. See G. L. c. 66, § 10(b)(iv) (a written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based”). Conclusion Accordingly, the Department is ordered to provide Mr. Oathout with a response to his request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten 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: Joseph Oathout