David S. Kassel v. Department of Developmental Services (SPR 20252804)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 6, 2025 SPR25/2804 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/DDS) 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. Previous Appeal This request was the subject of a previous appeal. See SPR25/2566 Determination of the Supervisor of Records (September 11, 2025). In my September 11th determination, I ordered the Department to provide Mr. Kassel with a response to Item 2 of his request. Specifically, I ordered the Department to 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.” Subsequently, the Department responded on September 18, 2025. Unsatisfied with the Department’s response, Mr. Kassel petitioned this office, and this appeal, SPR25/2804, was opened as a result. 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. SPR25/2804 Page 2 October 6, 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). 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 September 18th Response In its previous August 28, 2025 response to 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 advised that “[c]ensus information for the Wrentham Developmental Center and the Hogan Regional Center can be found on the DDS website in the Progress Reports to the Legislature on the DDS Community Services Expansion and Facilities Restructuring Plan for Fiscal Year 2020 – 2025[.] The Department further stated that it is, “searching for additional responsive records regarding census data and will provide records in a supplemental response, if applicable. In its September 18, 2025 response, the Department provided an additional responsive record and stated the following: This is a supplemental response regarding census data. DDS ran the following codes through the system of record for the end of each fiscal year from fiscal year 2020 through fiscal year 2025:  3153: Provider-Operated Group Homes  4157: State-Operated Group Homes  DMRFHRC001: Hogan Regional Center  DMRFWDC001: Wrentham Developmental Center DDS is providing the results of those searches in the following record entitled “Summary.” The numbers in this record represent the number of residents at a specific point in time – June 30th of that year.

Gabriella Eisner, Esq. SPR25/2804 Page 3 October 6, 2025 DDS is not producing records for Fiscal Year 2026 because Fiscal Year 2026 is not complete. DDS suggests you submit a new PRR if you wish to have census data as of a specific date in 2025. Current Appeal In his September 24, 2025 appeal petition, Mr. Kassel states, “I noticed a significant discrepancy between the census figures for state-operated group homes, which [the Department] provided to me on September 18 of this year, and the census figures for the same fiscal years, which [the Department] provided to me on November 6, 2023.” Mr. Kassel further contends that he is, “not asking [the Department] to analyze or reconcile the data, but that the Department meet its legal duty to provide a response that is reasonably clear and consistent. Because the responses contradict each other, they fail to meet that standard.” Unclear Appeal Upon review of the file, the Department provided a response, including information regarding census data responsive to “Fiscal Year 2026” as well as responsive census data for “the state-operated or corporate-operated group homes.” 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 occurred. See G. L. c. 66, § 10A(a). In his appeal petition, Mr. Kassel has not alleged a violation of G. L. c. 66, § 10 by the Department. Consequently, the basis of Mr. Kassel’s appeal is unclear. Mr. Kassel is advised that all petitions for appeal “shall specifically describe the nature of the requestor’s objections to the response or failure to timely respond.” 950 C.M.R. 32.08(l)(f). In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See 32 Op. Att’y Gen. 157, 165 (May 18, 1977). Conclusion Accordingly, I will consider this administrative appeal closed Sincerely, Manza Arthur Supervisor of Records cc: David Kassel