Altin Berxhiku v. Department of Children and Families (SPR 20251375)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 29, 2025 SPR25/1375 Steven Treat, Esq. Records Access Officer Assistant General Counsel Department of Children and Families 1 Ashburton Place, 3rd Floor Boston, MA 02108 Dear Attorney Treat: I have received the petition of Altin Berxhiku 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 May 1, 2025, Mr. Berxhiku requested the following: [1] “Photos of Bumps and Bruises” . . . - All photographs, case notes, emails, and evidence related to these “bruises,” - Metadata indicating when and how they were obtained, - The names of all officials who reviewed, referenced, or handled said photos. . . . [2] “Video Shown to Police” . . . - The alleged video in full; - All records, emails, logs, or memos that reference the existence of this video; - The names and contact information of the police officials who allegedly viewed it. . . . [3] “Sealed Police Report” . . . - All communications between you, the DCF office, and law enforcement officials regarding that report, - Written authorization or legal basis justifying your access to and use of sealed records. . . . [4] Call Logs Between [two named individuals] 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. SPR25/1375 Page 2 May 29, 2025 . . . - All DCF phone records showing any attempted or completed calls by [a named individual] to [another individual], - Any emails, internal memos, or logs documenting such contact, - Any call recordings, voicemails, or transcripts. The Department responded on May 15, 2025. Unsatisfied with the Department’s response, Mr. Berxhiku petitioned this office, and this appeal, SPR25/1375, 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 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. Current Appeal In his appeal petition, Mr. Berxhiku contends that there is no active litigation regarding the requested records, and he further argues that the requested records “are subject to disclosure under G.L. c. 66, § 10 unless a narrowly tailored exemption applies,” and goes on to argue that the reasons for withholding cited by the Department are “are irrelevant, misapplied, or misleading.” The Department’s May 15th Response In its May 15, 2025 response, the Department cites numerous statutes and regulations, as they operate through Exemption (a) of the Public Records Law, for withholding responsive records. See G. L. c. 4, § 7(26)(a). The Department also indicates that the records may be the subject of pending litigation.

Steven S. Treat, Esq. SPR25/1375 Page 3 May 29, 2025 Pending Litigation 950 C.M.R. 32.08(2)(b) provides in pertinent part: the Supervisor may deny an appeal for, among other reasons if, in the opinion of the Supervisor: 1. the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation. In its May 15th response, the Department states, “pertaining to requests for records regarding active litigation in Juvenile Court, please see Juv. Ct. Rule 13 and 110 CMR 12.09.” Based on the Department’s response, it is unclear whether there is active litigation concerning the requested records. Specifically, the Department has not provided a docket number referring to the possible litigation discussed in its response. See 950 C.M.R. 32.08(2)(b). Further, please note that a change in the status of any pending litigation could impact the applicability of 950 C.M.R. 32.08(2)(b). Accordingly, it is necessary to address the Department’s claims under Exemption (a) for withholding responsive records. Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7(26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public’s right to inspect records under the Public Records Law is restricted. See Att’y Gen. v. Collector of Lynn, 377 Mass. 151, 154 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either “shall not be a public record,” “shall be kept confidential” or “shall not be subject to the disclosure provision of the Public Records Law.” The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities.

Steven S. Treat, Esq. SPR25/1375 Page 4 May 29, 2025 In its May 15th response, the Department argues the following: As your requests seek information pertaining to a named individual, DCF case investigation files, and closed hearings, without confirming or denying such records exist, DCF investigative case files and closed hearings are exempt from disclosure under the public records law. The laws that prohibit the release of these records include, but are not limited to: G.L. c. 119, §§ 51E, 51F (constraining the release of reports of child abuse and neglect); G.L. c. 66A (limiting release of information concerning data subjects); G.L. c. 112, §§ 135-135B (limiting release of social worker/client communications); G.L. c. 119, § 38 (prohibiting the publishing of names of persons in closed hearings); G. L. c. 4, § 7 (26) (c) (prohibiting the disclosure of information regarding a personally named individual the disclosure of which may constitute an unwarranted invasion of personal privacy); 110 CMR 12.00 (regulating the release of Department records); 801 CMR 3.00 (regulation the release of personal data systems); 42 USC § 671(a)(8) (Title IV-E of the Social Security Act); 42 U.S.C. §510a(b)(2)(B)(viii)- (xi) (Child Abuse Prevention and Treatment Act); 45 CFR § 205.50 (Federal regulation of Title IV-E). A state agency may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public’s right to inspect records under the Public Records Law is restricted. See Attorney General v. Collector of Lynn, 377 Mass. 151, 154 (1979); General Chemical Corp. v. Department of Environmental Quality Engineering, 19 Mass. App. Ct. 287 (1987) (Supervisors of Records cannot order disclosure of records if a state statute mandates nondisclosure). Accordingly, this information is also “specifically or by necessary implication exempted from disclosure by statute.” G.L. c. 4, § 7, cl. 26(a). Further, G.L. c. 119 § 51E requires DCF to maintain a file of reports prepared under G.L. c. 119, §51A through 51E. The statute, however, requires that this information is kept confidential. According to the statute, this confidential information may only be provided to parents or their legal counsels, guardians, reporting agencies, review boards, child welfare agencies or social workers. Id. While the Office of the Child Advocate (“OCA”) has access to these reports, no other party may obtain copies unless permitted as indicated in the statute. The penalties for unauthorized disclosure include a fine of up to $1000 and possible imprisonment for up to 2 ½ years. Id. Similarly, G.L. c. 119, § 51F requires that any information contained in a central registry of information created by DCF “shall be confidential” and may only be disclosed to statutorily enumerated parties, including the OCA. The Department’s May 15th response did not contain the specificity required in a denial of access to public records. Under the Public Records Law, the burden shall be on the custodian to establish the applicability of an exemption to withhold or redact records. Based on the Department’s response, it is unclear how the withheld records constitute the types of records

Steven S. Treat, Esq. SPR25/1375 Page 5 May 29, 2025 contemplated under the numerous statutes and regulations cited by the Department. The Department must clarify this. Additionally, it is unclear from the Department’s response which specific records the Department intends to withhold. The Department must identify the records, categories of records, or portions of records it intends to withhold under Exemption (a) and the statutes and regulations cited in its response. See G. L. c. 66, § 10(b)(iv) (a written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based”). It is further uncertain why the records must be withheld in their entirety. The Department must explain whether the records can be redacted so that segregable portions can be provided. See Reinstein, 378 Mass. at 289-90 (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Conclusion Accordingly, the Department is ordered to provide Mr. Berxhiku 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. Mr. Berxhiku may further appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Altin Berxhiku