Richard Mills v. Department of Children and Families (SPR 20251891)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 15, 2025 SPR25/1891 Steven S. Treat, Esq. Assistant General Counsel Department of Children and Families 1 Ashburton Place, Third Floor Boston, MA 02108 Dear Attorney Treat: I have received the petition of Richard Mills, of Springfield Epilepsy Coalition, appealing the response of the Department of Children and Families (Department/DCF) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 15, 2025, Mr. Mills requested “…copies of all records DCF holds regarding [his] employment as a paraprofessional, including but not limited to personnel files, disciplinary records, investigation reports, and any other documents that reference [him].” Mr. Mills also provided his specific employment details. Previous Appeals This request was the subject of previous appeals. See SPR25/1154 Determination of the Supervisor of Records (April 30, 2025) and SPR25/1742 (June 27, 2025). In my June 27th determination, I closed SPR25/1742 in light of the Department providing a response on June 25, 2025. Unsatisfied with the Department’s response, Mr. Mills petitioned this office and this appeal, SPR25/1891, was opened as a result. While this appeal was pending, the Department provided a supplemental response on July 11, 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). 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. SPR25/1891 Page 2 July 15, 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. Status of the Requestor; Reason for the Request 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 G. L. c. 66, § 10(a); see also Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Mr. Mills’ interest in obtaining the records shall have no bearing on the public status of the responsive records. It is unclear if Mr. Mills may have a greater right of access to the responsive records outside the Public Records Law. The parties are encouraged to communicate to determine if there is another means affording Mr. Mills a greater right of access to the responsive records. The Department’s June 25th Response In its June 25, 2025 response, the Department cited numerous statutes as well as Exemption (c) of the Public Records Law to withhold the responsive records. The Department also stated: Please be advised, the records you seek are not subject to disclosure via the public records process, as they are not public records. DCF care records and investigative case files are exempt from disclosure under the public records law… Pursuant to DCF regulations and statute, the written approval of the Commissioner must be obtained to release the records you seek… Your request is still pending a decision by the Commissioner. Once a decision has been made as to your request, I will inform you promptly. Current Appeal In his appeal petition, Mr. Mills stated, “[t]he Department’s blanket refusal to provide these records, without citing specific exemptions to each document, constitutes an improper denial of access and a misapplication of both privacy and public records law.”

Steven S. Treat, Esq. SPR25/1891 Page 3 July 15, 2025 In its supplemental response on July 11, 2025, the Department clarified that it was withholding the responsive records pursuant to numerous cited statutes as they operate through Exemption (a) of the Public Records Law. On July 12, 2025, in reply to the Department’s supplemental response, Mr. Mills stated: I am not asserting a right to these records solely under the Massachusetts Public Records Law… Rather, I am invoking my right as a data subject under the Massachusetts Fair Information Practices Act (FIPA), G.L. c. 66A, and its accompanying regulations, 110 CMR 12.00, which explicitly govern access to personal records held by the Department of Children and Families. Under G.L. c. 66A, § 2(i) and 110 CMR 12.10, I am entitled to request and inspect any personal data in which I am named….These rights exist separately from — and are not preempted by — the public records law[.] 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, 54 (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. In its July 11, 2025 response, the Department cited G. L. c. 119, § 51A (governing the reporting of suspected child abuse or neglect); G. L. c. 119, § 51B (governing investigations of reports of child abuse); and G. L. c. 119, § 51E (constraining the release of reports of child abuse and neglect).

Steven S. Treat, Esq. SPR25/1891 Page 4 July 15, 2025 Under Exemption (a), the Department stated: [T]he records you seek are exempt from public records disclosure. Specifically, you seek reports and collateral documents pertaining to reports created pursuant to G.L. c. 119, §§ 51A, 51B, commonly known as 51A and 51B reports. These categories of reports are “specifically or by necessary implication exempted from disclosure by statute.” G.L. c. 4, § 7, cl. 26(a). The laws I stated in my previous email are all applicable to records, but most expressly, G.L. c. 119, § 51E exempts such records from public records disclosure, which states in pertinent “The department shall maintain a file of the written reports prepared under this section and sections 51A to 51D, inclusive. These written reports shall be confidential.” [T]he Supervisor of Records cannot require DCF to produce these records. In a further response on July 14, 2025, the Department clarified, “Mr. Mills has not worked for DCF, consequently, to the extent that DCF may have ‘personnel records’ pertaining to Mr. Mills, it would be contained in the investigation case records (51A or 51B report) exempt under G.L. c. 119 s. 51E.” Based on the information provided in the Department’s responses, and where the responsive records are restricted from disclosure entirely by the Legislature under G. L. c. 119, §§ 51A-51E as the statutes operate through Exemption (a) of the Public Records Law, I find that the Department has met its burden to withhold the responsive records. Where the Department has met its burden under Exemption (a), I decline to opine on the applicability of Exemption (c) of the Public Records Law to the responsive records. Issues Outside the Authority of this Office In addition to issues regarding the Public Records Law, Mr. Mills’ appeal petition alleges violations of 110 C.M.R. 12.10, as it operates through the Massachusetts Fair Information Practices Act (FIPA). Please be advised that the Office of the Supervisor of Records is statutorily empowered with the authority to determine the public record status of government records. See G. L. c. 66, § 10. Further, in compliance with the Public Records Law, the Supervisor of Records may only issue determinations where a violation of G. L. c. 66, § 10 has been alleged. See G. L. c. 66, § 10A(a). Given that 110 C.M.R. 12.10 concerns how the Department of Children and Families must handle the release of information in a non-litigation context, and does not fall within the authority of this office, I am unable to address such issues in this determination. Conclusion Accordingly, I will now consider this administrative appeal closed. If Mr. Mills is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth of Massachusetts. See G. L. c. 66, § 10A(c) (pursuing administrative appeal does not limit availability of applicable judicial remedies).

Steven S. Treat, Esq. SPR25/1891 Page 5 July 15, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Richard Mills