Arianna Murray v. Department of Mental Health (SPR 20250228)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 3, 2025 SPR25/0228 Misael Garcia Records Access Officer Department of Mental Health 25 Staniford Street Boston, MA 02114 Dear Ms. Garcia: I have received the petition of Arianna Murray, Esq., on behalf of Disability Law Center, Inc., appealing the response of the Department of Mental Health (Department) to a request for public records. See G. L. c. 66 § 10A; see also 950 C.M.R. 32.08(1). On November 13, 2024, Attorney Murray requested: PRR #1 regarding Southcoast Behavioral Health Hospital [1] All public logs DMH maintains or has maintained, per 104 CMR 32.07, concerning or referencing Southcoast Behavioral Health Hospital (“Southcoast”) from January 1, 2020 to the present date; [2] Any and all statistical records and reports excluding personally identifiable patient information concerning all uses of restraint and seclusion submitted by Southcoast to the Commissioner per 104 CMR 27.12(8)(i)(3), per month, from January 1, 2020 to the present date October 1, 2023 to October 31, 2024; and [3] Any and all statistical records and reports excluding personally identifiable patient information concerning all uses of restraint and seclusion at Southcoast maintained by the Commissioner per 104 CMR 27.12(8)(i)(3) and M. G. L. c. 123, § 21, per month, from January 1, 2020 to the present date October 1, 2023 to October 31, 2024. PRR #2 regarding Arbour Hospital in Jamaica Plain [1] All public logs DMH maintains or has maintained, per 104 CMR 32.07, concerning or referencing Arbour Hospital located at 49 Robinwood Avenue, 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 SPR25/0228 Page 2 February 3, 2025 Boston, MA 02130 (“Arbour JP”) from January 1, 2020 to the present date; [2] Any and all statistical records and reports excluding personally identifiable patient information concerning all uses of restraint and seclusion submitted by Arbour JP to the Commissioner per 104 CMR 27.12(8)(i)(3), per month, from January 1, 2020 to the present date October 1, 2023 to October 31, 2024; and [3] Any and all statistical records and reports excluding personally identifiable patient information concerning all uses of restraint and seclusion at Arbour JP maintained by the Commissioner per 104 CMR 27.12(8)(i)(3) and M. G. L. c. 123, § 21, per month, from January 1, 2020 to the present date October 1, 2023 to October 31, 2024. The Department provided a response on January 9, 2025. Unsatisfied with the Department’s response, Attorney Murray petitioned this office and this appeal, SPR25/0228, 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. See 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. See 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 9th response In its January 9, 2025 response, the Department states, “we have worked diligently to produce any releasable records to you in a timely manner and at this juncture it is being reviewed by leadership. Unfortunately, this process that has been implemented by the Executive Office of Health and Human services can be tedious and, in some cases, take longer to process for any agency under EHHS….”

Misael Garcia SPR25/0228 Page 3 February 3, 2025 Current appeal In her appeal, Attorney Murray states, “[t]he Disability Law Center (‘DLC’) petitions for an appeal of the lack of substantive response of the Department of Mental Health (‘DMH’) to DLC’s two requests for public records dated November 13, 2024 (‘PRRs’)…. The public records requests sought identical public records and information concerning two hospitals – Arbour Hospital in Jamaica Plain and Southcoast Behavioral Hospital. To date, DMH has not provided records or a statement concerning purported exemptions responsive to DLC’s PRR….” Timeliness in providing records G. L. c. 66, § 10(b) provides, in pertinent part, that if the magnitude or difficulty of the request unduly burdens the other responsibilities of the agency or 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 for a municipality the timeframe shall not exceed 25 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 Attorney Murray submitted her request on November 13, 2024, and the Department has not provided the responsive records, nor cited an exemption for withholding records, I find the Department has not met its burden in responding to the request in accordance with G. L. c. 66, § 10(b)(vi). Consequently, I find the Department must provide an estimated date as to when it intends to complete the search and provide the responsive records. See G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). Conclusion Accordingly, the Department is ordered to provide Attorney Murray 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. Attorney Murray may appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1).

Misael Garcia SPR25/0228 Page 4 February 3, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Arianna Murray, Esq.