David S. Kassel v. Department of Developmental Services (SPR 20242420)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 6, 2024 SPR24/2420 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/DDS) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 12, 2024, Mr. Kassel requested: [a]ll documents in possession of the Department of Developmental Services, including emails, that concern the following: An ‘exercise’ in which DDS employees participated which resulted in identifying the approximate number of state-operated group home vacancies as of June 30, 2023. This exercise is referred to in your letter, dated July 10, 2024, to Attorney … of the state’s Public Records Division with regard to my Public Records Request of April 24. The Department provided a response on August 9, 2024. Unsatisfied with the Department’s response, Mr. Kassel petitioned this office and this appeal, SPR24/2420, was opened as a result. While this appeal was opened, the Department provided a further response on August 28, 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). 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. SPR24/2420 Page 2 September 6, 2024 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. Att’y 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 August 9th and August 28th Responses In its August 9, 2024 response, the Department provided Mr. Kassel with several records responsive to his request that were used to approximate the number of vacancies. “DDS does not possess records that directly show the previous determination of approximate vacancies. Vacancy numbers are fluid 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. The above documents are updated by DDS staff in real time and thus, despite efforts to obtain pinpoint date versions, DDS does not have documents in its possession for the specific date of June 30, 2023.” Current Appeal In his appeal to this office, Mr. Kassel states, “[n]one of the documents contain any identifiable connection to the exercise conducted by DDS or the subject of the exercise -- the number of vacancies in the group homes. I would request that you order DDS to clarify whether it does or does not possess records that specifically describe the nature or scope of the one-time, vacancy-determination exercise that the Department conducted in 2023, and/or the reasons for conducting that exercise.” In an email to this office on August 28, 2024, in response to Mr. Kassel’s appeal, the Department states, “DDS does not possess additional responsive records for Mr. Kassel’s July 12, 2024 Public Records Request.” Mr. Kassel responded to the Department’s email on August 29, 2024. In that email, he states: In none of the documents provided to me by Attorney … on August 9 is there any reference to any type of ‘exercise’ conducted by DDS employees. One document was provided that is referred to as a ‘vacancy tracker,’ but that document appears to contain only the names and phone numbers of DDS employees. While it appears there are names of residents in that document that have been blacked out, there is no apparent summary information in any of the documents. In particular, there is no reference to the 91 vacancies that the exercise reportedly identified.

Gabriella Eisner, Esq. SPR24/2420 Page 3 September 6, 2024 If DDS does not have any records in its possession that refer to the exercise or to the reported conclusion of the exercise that there were approximately 91 vacancies, how could this number of vacancies be known by DDS, and on what basis would Attorney … have been able to transmit that number [for] me? In a telephone call between a staff attorney of the Public Records Division and an attorney for the Department on September 6, 2024, the Department confirmed that it provided all records responsive to the request. The Department further confirmed that the exercise in question was an informal exercise that provided an estimate for vacancies, and that the records provided to Mr. Kassel were used in determining the approximate numbers. 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. If Mr. Kassel is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, §§ 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: David Kassel