John Trask v. Department of Mental Health (SPR 20250139)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 22, 2025 SPR25/0139 Misael Garcia Records Access Officer Department of Mental Health 25 Staniford Street Boston, MA 02114 Dear Mr. Garcia: I have received the petition of John Trask appealing the response of the Department of Mental Health (Department/DMH) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 6, 2024, Mr. Trask requested “[a]nonymized data showing the distribution of durations of mechanical restraints within state psychiatric hospitals … from January 2020 to the present[.]” Mr. Trask sought a further breakdown of the data for adolescent units (excluding months where policy prohibited use of mechanical restraints in adolescent units), adult continuing care units, and adult court evaluation units. Prior Appeal and Petition This request was the subject of a prior appeal and time petition. See SPR24/3154 Determination of the Supervisor of Records (December 5, 2024) and SPR24/3395 Determination of the Supervisor of Records (December 24, 2024). In my December 5th determination, I ordered the Department to provide a response to Mr. Trask’s request. In my December 24th determination, I found that the Department had established good cause for a time extension of thirteen (13) business days. The Department provided a response on January 13, 2025. Unsatisfied with the Department’s response, Mr. Trask petitioned this office and this appeal, SPR25/0139, 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 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

Misael Garcia SPR25/0139 Page 2 January 22, 2025 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. 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 January 13th Response In its January 13, 2025 response, the Department stated: On November 21, 2024, DMH provided all responsive data in its possession showing the distribution of mechanical restraints by duration within state- operated psychiatric hospitals, broken down by unit type (adolescent units and adult continuing care, for each month from January 2020 to the present. Please note that the adult continuing care restraint data includes data of patients admitted for court-ordered evaluations, as DMH does not maintain separate restraint data for this specific patient population. On November 22, 2024, you submitted a public records request (PRR) requesting a percentage breakdown by duration intervals for the mechanical restraints data. After a comprehensive search, DMH has not identified any records responsive to this PRR in its possession, custody, or control. Current Appeal In his January 15, 2025 petition to this office, Mr. Trask contends that additional responsive records exist, and suggests several alternative formats in which the requested data could be provided. Mr. Trask does not object to the suppression of data values greater than zero and less than eleven. No Duty to Create Records Please be advised, under the Public Records Law a custodian is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d). In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See 32 Op. Att’y Gen. 157, 165 (May 18, 1977). The duty to comply with requests for

Misael Garcia SPR25/0139 Page 3 January 22, 2025 records extends only 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). Conclusion Given that all responsive records have been provided, and this office has no authority to compel the Department to create records, I will now consider this administrative appeal closed. If Mr. Trask if not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth Massachusetts. G. L. c. 66, § 10A(c) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: John Trask