Corey Kelleher v. Department of Children and Families (SPR 20250738)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 26, 2025 SPR25/0738 Steven S. Treat, Esq. Records Access Officer 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 Corey Kelleher 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 February 17, 2025, Mr. Kelleher requested the following: [1] All 51A reports concerning . . . [two identified individuals], including those filed by medical professionals, probation officers, or other mandated reporters[;] [2] All 51B investigation reports, including case notes, findings, social worker reports, and transcripts[;] [3] All case dictation reports, assessments, action plans, and recommendations created by DCF regarding [an identified] case[;] [4] Any DCF internal memos or directives on handling allegations related to [an identified] case[;] . . . [5] All [identified] reports of child abuse or neglect . . . including records showing DCF’s response and investigative actions[;] [6] All internal communications, emails, and memos discussing [the identified] child abuse reports[;] [7] Records of DCF’s involvement in probate hearings regarding [the identified] child abuse concerns[;] . . . [8] All records of DCF employees’ conversations with law enforcement about [an identified individual], including any internal communications[;] [9] Records of DCF employees referring to [an identified individual] in a derogatory manner[;] . . . [10] Records showing DCF’s knowledge that [an identified individual] had legal custody rights at the time of their involvement in [an identified] case[;] [11] All DCF records related to [an identified] lawsuit, including: . . . [i]nternal 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. SPR25/0738 Page 2 March 26, 2025 emails, reports, and case files . . . .[;] [12] Communications between DCF and legal entities discussing [an identified] case[;] . . . [13] All DCF records related to allegations made by [an identified individual][;] [14] All internal DCF case notes, reports, and communications discussing inconsistencies in [these] claims[;] [15] Records of statements [an identified individual] made to: . . . [an identified] Probation Officer . . . and [an identified physician,] . . . [t]he Lowell Police Department and Lunenburg Police Department[,] . . . DCF caseworkers, supervisors, and investigators[,] . . . [t]he Probate and Family Court and restraining order hearings[;] . . . [16] All records regarding DCF’s testimony in 209A hearings, including case notes, emails, and transcripts[;] [17] Records showing DCF’s knowledge of [identified] child abuse reports when they testified[;] [18] Any internal communications indicating that DCF omitted facts regarding active custody modifications and child abuse reports when testifying[;] [19] All records of DCF personnel altering, concealing, or misrepresenting evidence in [an identified] case[;] [20] Emails or internal communications showing that DCF ignored, delayed, or failed to investigate serious allegations [an identified individual] reported[;] . . . [21] All records of DCF’s communications with the Lunenburg Police Department regarding [an identified] custody order[;] . . . [22] Any DCF records, memos, or communications related to concerns about judicial misconduct or bias in [an identified] custody case or defamation lawsuit and appeal. The Department responded on February 26, 2025. Unsatisfied with the Department’s response and claiming to not yet have received responsive records, Mr. Kelleher petitioned this office and this appeal, SPR25/0738, was opened as a result. While this appeal was pending, the Department provided a supplemental response on March 20, 2025. 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

Steven S. Treat, Esq. SPR25/0738 Page 3 March 26, 2025 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. Purpose of request; Identity of requestor Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Mr. Kelleher’s purpose in making the request has no bearing on the public status of any existing responsive records. The Department’s February 26th and March 20th Responses In its February 26, 2025 response, a representative from the Department stated, “I wanted to inform you that your request has been received and is being processed.” In its March 20, 2025 supplemental response, a Department representative stated, “[a]s mentioned previously, your request was received and in process. It is currently with the redactor. I have reached out for an update and as soon as I hear back I will reach back out.” Timeline for Providing Responsive Records The Department is advised that G. L. c. 66, § 10(b) provides, in pertinent part, that if the magnitude or difficulty of a 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 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 Mr. Kelleher’s request was submitted on February 17, 2025, and the Department has not provided responsive records pertaining to the request, 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,

Steven S. Treat, Esq. SPR25/0738 Page 4 March 26, 2025 I find the Department must provide an estimated date as to when it intends to complete the search and provide the outstanding records. See G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). To the extent possible, the Department must provide responsive records on a rolling basis. Conclusion Accordingly, the Department is ordered to provide Mr. Kelleher 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. Sincerely, Manza Arthur Supervisor of Records cc: Corey Kelleher Adam J. Smith