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By David Kassel
The Massachusetts supervisor of public records ruled in April that the state’s Disabled Persons Protection Commission (DPPC) can keep all investigative reports on the sudden death of a developmentally disabled woman secret.
A recent Superior Court ruling, however, has provided a basis for renewing a request by my organization, the Massachusetts Coalition of Families and Advocates.
The decision by Superior Court Judge Douglas H. Wilkins in December 2017 upheld an appeal by The Boston Globe, which has been seeking mugshots and incident reports of police and other public officials who have been arrested on various criminal charges.
The Globe’s argument that the records it is seeking are public applies equally to the DPPC report and related records in the case of Karen McGowen, which the Massachusetts Coalition of Families and Advocates has been seeking.
McGowen was killed in an apparent accident last November. She reportedly fell from a wheelchair lift while getting out of a van at a day program funded by the state’s Department of Developmental Services.
The DPPC, which is charged with investigating or supervising investigations of abuse and neglect of disabled adults under the age of 60, confirmed it was investigating McGowen’s death. On February 13, the DPPC denied our request for records in the case.
In her April 20 decision on our appeal, Rebecca Murray, the state public records supervisor, focused on Exemption (a) to the public records law, which appears to give blanket authority for the enactment of statutes and regulations that can potentially exempt all records of particular state agencies from disclosure.
We are arguing in our renewed bid for the DPPC records that the statute governing the commission does not exempt all records from disclosure — and that regulations saying otherwise are unenforceable as they conflict with the statute.
It’s disappointing that to the extent the commission does get involved in crucial investigations of abuse and neglect in the state’s human services system, it has taken the position that the products of its work must be kept secret.
David Kassel, Massachusetts Coalition of Families and Advocates
In her decision, Murray focused solely on the regulations, which, contrary to the statute, explicitly state that the commission’s records are not public. The inconsistency between the DPPC’s enabling statute and the regulations was not noted in the decision.
A similar inconsistency between a statute and regulations pertaining to the state’s CORI law is the basis of Judge Wilkins’ December decision in the Globe’s public records case. In his ruling, Wilkins upheld the Globe’s argument that the CORI law does not permit public officials to block the release of mugshots or police reports.
Wilkins confirmed that a regulation issued by the state agency administering CORI is inconsistent with the law in that the regulation appears to justify withholding the records from disclosure even though the statute says they shouldn’t be.
“The regulation is invalid because ‘its provisions cannot in any appropriate way be interpreted in harmony with the legislative mandate,’” Wilkins’ determined.
State Attorney General Maura Healey and the City of Boston have appealed Wilkins’ ruling. Oral arguments in the appeal have not yet been scheduled, according to a reporter at the Globe.
With regard to the DPPC’s records, the commission’s enabling statute states that:
“The Commission shall promulgate regulations establishing procedures to exclude personally identifiable information regarding the subjects of investigations and to carry out the responsibilities of this chapter in such a way as to disclose as little personally identifiable information as possible.” (my emphasis)
However, the DPPC regulations seem to go well beyond that, stating that “the records of the Commission shall not be considered ‘public records’…”
The regulations go on to exempt from disclosure all “investigative materials” compiled by the DPPC. And the regulations state that the DPPC can determine that “the mere removal of identifying personal data would be insufficient to protect existing privacy interests, or that disclosure would not be in the public interest…”
Our argument is that the statute does not state that the records are not public or that all investigative materials are exempt. The statute also doesn’t give the DPPC the discretion to withhold all records because removing identifiable information would not protect privacy interests. The statute simply says the commission should disclose as little identifiable information as possible.
As a result, it appears that the DPPC regulations are similarly invalid because their provisions cannot be interpreted in harmony with the commission’s legislative mandate.
In the Globe’s case, Judge Wilkins wrote that if any doubt remained about whether there was an inconsistency, the CORI statute “establishes a clear ‘presumption that the record sought is public’ and places a burden on the record’s custodian ‘to prove with specificity the exemption which applies’ to withheld documents.”
Similarly, the statute in our case establishes a clear presumption that the commission’s records are public and that the DPPC has the burden of proving with specificity the exemption that applies to withhold those documents. In stating that the records of the commission are not public, the regulations contradict the plain language of the statute.
The DPPC is still likely to deny our renewed request, but we hope that the supervisor will take Judge Wilkins’ decision into account when making a new determination in the matter. When doing so, the supervisor should at least seek to review the materials we are requesting to determine the level of redactions that would be needed to comply with the DPPC’s enabling statute.
As we’ve stated before, it’s disappointing that to the extent the commission does get involved in crucial investigations of abuse and neglect in the state’s human services system, it has taken the position that the products of its work must be kept secret.
David Kassel is the director of communications for the Massachusetts Coalition of Families and Advocates (COFAR, Inc.). He is a former journalist and previously worked as chief of the Management Division in the Massachusetts Office of the Inspector General.
Above photo provided by Flickr user Zachary Korb and used under a CC 2.o license.
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