David S. Kassel v. Department of Developmental Services (SPR 20252566)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 11, 2025 SPR25/2566 Gabriella Eisner, Esq. Assistant General Counsel Records Access Officer Department of Developmental Services 1000 Washington Street Boston, MA 02118 Dear Attorney Eisner: I have received the petition of David Kassel appealing the response of the Department of Developmental Services (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 7, 2025, Mr. Kassel requested the following: [1] [C]opies of any written policies adopted by the Department regarding admissions, including opening admissions, to the Wrentham and Hogan Centers, and to the Department’s state-operated group homes[;] [2] [D]ata showing the census at Wrentham, Hogan, and in the state-operated group group [sic] homes and corporate-operated group homes in Massachusetts each year, from Fiscal Year 2020 through 2026. The Department responded on August 28, 2025. Unsatisfied with the Department’s response, and claiming the Department possesses additional responsive records, Mr. Kassel appealed, and this case 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). 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 Eisner, Esq. SPR25/2566 Page 2 September 11, 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. The Department’s August 28th Response In its August 28, 2025 response, in regard to Item 1 of the request, the Department indicated that it was withholding two responsive records under Exemption (d) of the Public Records Law and provided the following information in support of its position: Policies Regarding Admissions[:] In a January 27, 2025 PRR you requested current written policies for concerning “[a]dmissions to the Wrentham Developmental Center and Hogan Regional Center, and admissions to state operated group homes.” On February 18, 2025, DDS provided you with two (2) responsive records: (1) Charles V. Hogan Regional Center Individual Support Policy #1 and (2) DMR Policy #87-3, Admission and Readmission Policy, State Schools, Regional Centers, Developmental Center. In its February 18th response [to the above January 27, 2025 request], the Department also stated: “The Department has identified one (1) responsive record relating to admissions at Wrentham Development Center and Hogan Regional Center. The Department has also identified one (1) responsive record relating to admissions at Evaluation and Stabilization Programs. Both records are draft documents relating to policy development, and are exempt pursuant to M.G.L. c. 4, § 7(26), exemption (d) (the deliberative process exemption). DDS is withholding these records because the release of these records could taint the deliberative process if prematurely disclosed.” The Department withholds the same two (2) records as they relate to your current request, pursuant to M.G.L. c. 4, § 7(26), exemption (d) (the deliberative process exemption). DDS has no other responsive records. Regarding Item 2 of the request, the Department provided a link to six responsive reports concerning “DDS Community Services Expansion and Facilities Restructuring Plan” for the fiscal years 2020 through 2025, and further advised the following: Census Data[:] Census information for the Wrentham Developmental Center and the Hogan Regional Center can be found on the DDS website in the Progress

Gabriella Eisner, Esq. SPR25/2566 Page 3 September 11, 2025 Reports to the Legislature on the DDS Community Services Expansion and Facilities Restructuring Plan for Fiscal Year 2020 – 2025[.] DDS is searching for additional responsive records regarding census data and will provide records in a supplemental response, if applicable. Current Appeal In his August 28, 2025 appeal petition, Mr. Kassel contends that the Department possesses additional records responsive to Item 2 of his request. Specifically, he asserts that “the most recent census data available through [the Department’s] response is contained in the Fiscal Year 2025 Restructuring Plan Report, which is dated November 2024. . . . I had asked for census data though Fiscal Year 2026, which would imply data as least as recent as July 1 of this calendar year.” Mr. Kassel additionally states, “the available Restructuring Plans do not appear to contain any census data, as requested, for either the state-operated or corporate-operated group homes.” Based a telephone conversation between a representative of the Department and a Public Records Division staff member on September 10, 2025, it is my understanding that there may be additional records responsive to Mr. Kassel’s request. Please be advised that the duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). However, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). Consequently, the Department must clarify whether any additional records responsive to Item 2 of the request exist. Specifically, the Department must clarify whether it possesses census data responsive to “Fiscal Year 2026” as well as responsive census data for “the state-operated or corporate-operated group homes.” Conclusion Accordingly, the Department is ordered to provide Mr. Kassel with a response to his request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten 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. Kassel may appeal the substantive nature of the Department’s response within 90 days. See 950 C.M.R. 32.08(1).

Gabriella Eisner, Esq. SPR25/2566 Page 4 September 11, 2025 Sincerely, Manza Arthur Supervisor of Records cc: David Kassel