Corey Kelleher v. Department of Children and Families (SPR 20251759)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 2, 2025 SPR25/1759 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. SPR25/1759 Page 2 July 2, 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. Previous Appeal This request was the subject of a previous appeal. See SPR25/0738 Determination of the Supervisor of Records (March 26, 2025). In my March 26th determination, I found that the Department must provide an estimated date as to when it intends to complete the search and provide records. Subsequently, the Department responded on April 10, 2025. Unsatisfied with the Department’s response, Mr. Kelleher petitioned this office, and this appeal, SPR25/1759, 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).

Steven S. Treat, Esq. SPR25/1759 Page 3 July 2, 2025 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. 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 April 10th Response In its previous response, a Department representative stated, “. . . 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.” In its April 10, 2025 response, a representative from the Department stated the following: The records you seek are not public records as they are confidential by statute, for which records only you and certain statutorily enumerated individuals and entities are entitled. The laws that prohibit the public 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. 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). Current Appeal In his appeal petition, Mr. Kelleher states that he is, “writing in response to DCF’s email dated April 10, 2025, which was submitted after . . . the Supervisor of Records’ official

Steven S. Treat, Esq. SPR25/1759 Page 4 July 2, 2025 determination dated March 26, 2025 in SPR25/0738. Mr. Kelleher further indicates that “not a single responsive record has been produced.” Burden of Specificity Under the Public Records Law, the burden shall be on the custodian to establish the applicability of an exemption to withhold or redact records. In this case, the Department’s April 10th response did not contain the specificity required in a denial of access to public records. 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, and explain with specificity how any exemptions apply to withhold the records. 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”). See also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. It is also uncertain why the records must be withheld in their entirety. See Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (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). The Department must clarify these matters. 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