John Hilliard v. Department of Developmental Services (SPR 20250797)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 2, 2025 SPR25/0797 Gabriella K. Eisner, Esq. Records Access Officer Department of Developmental Services 1000 Washington Street Boston, MA 02118 Dear Attorney Eisner: I have received the petition of John Hilliard, of the Boston Globe, 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 February 22, 2025, Mr. Hilliard requested the following records: [1] All reports related to the use of the Fernald School in Waltham as storage from 1995 to the present[.] [2] All interdepartmental licenses or contracts related to the use of the Fernald School in Waltham as storage from 1995 to the present[.] The Department provided responses on March 7, 2025 and March 14, 2025. Unsatisfied with the Department’s responses, Mr. Hilliard petitioned this office and this appeal, SPR25/0797, 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. 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 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 K. Eisner, Esq. SPR25/0797 Page 2 April 2, 2025 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 March 7th and March 14th responses In its March 7, 2025 response, the Department stated, “[t]he Department of Developmental Services (DDS) is in receipt of your February 22, 2025 public records request. DDS is unable to provide a response by March 7, 2025. DDS is in the process of retrieving potentially responsive records from storage and reviewing those records. Consistent with M.G.L. c. 66 § 10(b)(vi), DDS expects to respond on or before March 14, 2025.” In its March 14, 2025 response, the Department further advised, “DDS continues to work on your public records request. The responsive records should be made available soon; I anticipate that the records will be provided to you next week.” 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 Mr. Hilliard’s request was submitted on February 22, 2025, 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). Accordingly, I find the Department must provide an estimated date as to when it expects to complete its review and provide any responsive records. See G. L. c. 66, § 10(a)

Gabriella K. Eisner, Esq. SPR25/0797 Page 3 April 2, 2025 (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. Hilliard with a response, 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. Mr. Hilliard may appeal the substantive nature of the Department’s response within 90 calendar days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: John Hilliard