Joseph Oathout v. Department of Children and Families (SPR 20242587)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 25, 2024 SPR24/2587 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.) Previous Appeal This request was the subject of a previous appeal. See SPR24/2176 Determination of the Supervisor of Records (August 15, 2024). In my August 15th Determination, I found that the Department needed to clarify whether it possessed any records responsive to the request, specifically, claims approved by the Department and submitted on behalf of the identified individual. The Department provided a response on August 29, 2024. Unsatisfied with the Department’s response, Mr. Oathout petitioned this office and this appeal, SPR24/2587, 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 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. SPR24/2587 Page 2 September 25, 2024 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 August 29th Response In its August 29, 2024 response, the Department states, “DCF has no responsive records pertaining to MassHealth/Medicaid claims submitted on behalf of [a named individual] that were approved by DCF staff.” Current Appeal In his appeal, Mr. Oathout states: the response by Mr. Treat is ambiguous to the query we provided. We were specific to ask whether Boston Childrens reached out to ANY DCF staff to include the Commissioner who by law has to make Medical Care Authorization while [a named individual] was a ward of the state. The below statement does not answer that question. Who was reached out to, when were they reached out to and what authorizations for care (outside of Family court ordered care for Somatoform) that was provided while she was a ward of the state. I don’t write the laws for your state. Your state requires that Family and Guardians are responsible for providing the necessary Consents for a minor for medical care outside of gender affirming care and abortions. We would appreciate a more tacit response that leaves no legal ambiguity in this matter. Either Consents were requested and provided or DCF Abdicated their legal responsibilities. No Duty to Create Records Please be advised, under the Public Records Law the Department is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d). The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or

Steven S. Treat, Esq. SPR24/2587 Page 3 September 25, 2024 control of the custodian of records at the time of the request. See G. L. c. 66, §10(a)(ii). Additionally, please note that under the Public Records Law, a public employee is not required to answer questions, do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Atty Gen. 157, 165 (May 18, 1977). In a telephone call on September 25, 2024, between a Public Records Division staff attorney and a representative for the Department, the Department confirmed that it has no records responsive to the request. Conclusion Where the Department confirmed that it does not possess records responsive to Mr. Oathout’s request, I will now consider this administrative appeal closed. If Mr. Oathout 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: Joseph Oathout