Matthew Capasso v. Department of Children and Families (SPR 20252914)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 20, 2025 SPR25/2914 Adam J. Smith Records Access Officer Department of Children and Families 1 Ashburton Place Boston, MA 02108 Dear Mr. Smith: I have received the petition of Matthew Capasso 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 September 4, 2025, Mr. Capasso requested, “[an identified individual’s] complete, unredacted case record and all related internal and external communications held by the DCF North Central Area Office for the period September 10, 2024 through September 4, 2025 . . . including but not limited to[;] 51A/51B reports, screening notes, investigation summaries, dictation/case notes, contact logs, assessments, action plans, safety plans, supervisory review, closing recommendations, hearing materials, and exhibits. . .” Previous Appeal This request was the subject of a prior appeal. See SPR25/2654 Determination of the Supervisor of Records (September 17, 2025). In my September 17th determination, I ordered the Department to clarify whether it possessed additional records responsive to the request. The Department responded on October 3, 2025. Unsatisfied with the Department’s response, Mr. Capasso petitioned this office and this appeal, SPR25/2914, was opened as a result. Subsequently, the Department provided an additional response on October 7, 2025. 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 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

Adam J. Smith SPR25/2914 Page 2 October 20, 2025 Lexington, 371 Mass. 59, 64 (1976). Accordingly, Mr. Capasso’s status shall have no bearing on the public status of any existing responsive records. Additionally, based on information provided in Mr. Capasso’s appeal, it is unclear if Mr. Capasso 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. Capasso a greater right of access to the responsive records. 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. Att’y 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 October 3rd and October 7th Responses In its October 3, 2025 response, the Department cited G. L. c. 119, §§ 51E, 51F, G. L. c. 112 §§ 135-135B, 42 USC § 671(a)(8), and 45 CFR § 205.50, as they operate through Exemption (a) of the Public Records Law to withhold responsive records in their entirety. Additionally, the Department cited Exemption (c) of the Public Records Law to withhold responsive records in their entirety. Further, the Department advised Mr. Capasso that the Executive Office of Health and Human Services retains “personnel information and files pertaining to named DCF staff.” In its October 7, 2025 response, the Department stated, “[i]t is my understanding that you have been provided will all records pertaining to your case in addition to an updated request to supplement the last request that was received. There are no other records you are entitled to…”

Adam J. Smith SPR25/2914 Page 3 October 20, 2025 Current Appeal In his October 3, 2025 petition to this office, Mr. Capasso objected to the Department withholding records under Exemption (a) and Exemption (c). In an October 7, 2025 email communication to this office and the Department, Mr. Capasso stated, “[m]ultiple responsive records previously contained within DCF’s electronic case file have been removed, redacted, or replaced with altered versions between successive disclosures. Specifically, the Department has refused to disclose documentation from October 22, 2024…” 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, 545-546 (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. Under Exemption (a), the Department cites G. L. c. 119, §§ 51E and 51F, which provide in pertinent parts: 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. Upon request and with the approval of the commissioner, copies of written reports of initial investigations may be provided to: (i) the child’s parent, guardian, or counsel, (ii) the reporting person or agency, (iii) the appropriate

Adam J. Smith SPR25/2914 Page 4 October 20, 2025 review board, (iv) a child welfare agency of another state for the purpose of assisting that agency in determining whether to approve a prospective foster or adoptive parent, or (v) a social worker assigned to the case. No such report shall be made available to any persons other than those specified in this section without the written and informed consent of the child’s parent or guardian, the written approval of the commissioner, or an order of a court of competent jurisdiction. Pursuant to chapter 18C, the child advocate shall have access to these reports. G. L. c. 119, § 51E. The department shall maintain a central registry of information sufficient to identify children whose names are reported under sections 51A to 51B. Data and information relating to individual cases in the central registry shall be confidential and shall be made available only with the approval of the commissioner or upon court order; provided, however, that the department, upon request, may release this data and information to a child welfare agency of another state for the purpose of assisting that agency in determining whether to approve a prospective foster or adoptive parent. The commissioner shall establish rules and regulations governing the availability of such data and information. Pursuant to chapter 18C, the child advocate shall have access to the information in the registry. G. L. c. 119, § 51F. The Department also cites G. L. c. 112, §§ 135-135B. Section 135A provides in pertinent part: All communications between a social worker licensed pursuant to the provisions of section one hundred and thirty-two or a social worker employed in a state, county or municipal governmental agency, and a client are confidential. . . . No such social worker, colleague, agent or employee of any social worker, whether professional, clerical, academic or therapeutic, shall disclose any information acquired or revealed in the course of or in connection with the performance of the social worker’s professional services, including the fact, circumstances, findings or records of such services. G. L. c. 112, § 135A. Additionally, in its response, the Department cites 42 USC § 671(a)(8) (governing state plans for foster care and adoption assistance), 42 USC §510a(b)(2)(B)(viii)-(xi) (governing grants to states for child abuse or neglect prevention and treatment programs), 110 CMR 12.00 (regulating the release of Department records), and 45 CFR § 205.50 (safeguarding information for financial assistance programs).

Adam J. Smith SPR25/2914 Page 5 October 20, 2025 Exemption (c) Exemption (c) applies to: personnel and medical files or information and any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy; provided, however, that this subclause shall not apply to records related to a law enforcement misconduct investigation G. L. c. 4, § 7(26)(c). First Clause – Medical Medical information that is of a personal nature and relates to a specifically named individual may be exempt from disclosure. Brogan v. Sch. Comm. of Westport, 401 Mass. 306, 308 (1987); Globe Newspaper Co. v. Boston Ret. Bd., 388 Mass. 427, 438 (1983). Generally, medical information is sufficiently personal to warrant exemption. Globe Newspaper Co., 338 Mass. at 432-34. There is a strong public policy in Massachusetts that favors confidentiality as to medical data about a person’s body. Globe Newspaper Co. v. Chief Med. Exam’r, 404 Mass. 132, 135 (1987). Second Clause – Privacy Analysis under the second clause of Exemption (c) is subjective in nature and requires a balancing of the public’s right to know against the relevant privacy interests at stake. Torres v. Att’y Gen., 391 Mass. 1, 9 (1984); Att’y Gen. v. Assistant Comm’r of Real Prop. Dep’t, 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case-by-case basis. There are factors to consider when assessing the weight of the privacy interest at stake: (1) whether disclosure would result in personal embarrassment to an individual of normal sensibilities; (2) whether the materials sought contain intimate details of a highly personal nature; and (3) whether the same information is available from other sources. See People for the Ethical Treatment of Animals (PETA) v. Dep’t of Agric. Res., 477 Mass. 280, 292 (2017). The types of personal information which the second clause of this exemption is designed to protect includes: marital status, paternity, substance abuse, government assistance, family disputes and reputation. Id. at 292 n.13.; see also Doe v. Registrar of Motor Vehicles, 26 Mass. App. Ct. 415, 427 (1988) (holding that a motor vehicle licensee has a privacy interest in disclosure of his social security number). When analyzing a privacy claim, there is a balancing test which provides that where the public interest in obtaining the requested information substantially outweighs the seriousness of any invasion of privacy, the private interest in preventing disclosure must yield. PETA, 477 Mass. at 291. The public has a recognized interest in knowing whether public servants are carrying out their duties in a law abiding and efficient manner. Id. at 292.

Adam J. Smith SPR25/2914 Page 6 October 20, 2025 Burden of Specificity In its October 3rd response, the Department argues that “DCF case records, reports and communications pertaining to individual case file, these categories of records are exempt from disclosure…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…” Based on the Department’s response, I find the Department has not met its burden in responding to this request. Specifically, it is unclear what records the Department intends to withhold. The Department must identify the records, categories of records, or portions of records it intends to withhold under Exemptions (a) and (c), and the statutes cited in its response. Further, the Department must explain with specificity how such exemptions apply to the withheld 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; 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). The Department must clarify these matters. Conclusion Accordingly, the Department is ordered to provide Mr. Capasso 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. Capasso may 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: Matthew Capasso Ann Horgan Steven Treat, Esq. Erica Otero-Vargas, LICSW