The following was emailed to newsrooms and members of the media throughout Massachusetts on behalf of the Massachusetts Coalition of Families and Advocates. Would you like to share a public records story? Please email justin@nefac.org.
By Dave Kassel
I’m writing to call your attention to a bill in the Massachusetts Legislature, which we think would draw an ever-tighter cloak of secrecy around investigative reports of abuse and neglect of the disabled in the state: H.117.
It’s not clear that either key state legislators or many in the media are aware of this bill or its implications. If you haven’t already done so, we hope you will take a close look at the measure, which would effectively exempt all investigative reports and records of the Disabled Persons Protection Commission (DPPC) from public disclosure even if personal information in those records were redacted.
At a certain point, laws and other initiatives that are ostensibly enacted or undertaken to protect privacy cross the line into secrecy and provide a curtain for agencies to hide behind.
The DPPC is the state’s only independent agency charged with investigating allegations of abuse and neglect of adults under the age of 60 with developmental and other disabilities.
H.117 and its counterpart in the Senate (S.53) propose making a number of changes to the DPPC’s enabling statute, including adding language stating that, “all records containing confidential or personal data which are created, collected, used, maintained or disseminated pursuant to this chapter shall not be public records” (my emphasis).
Unfortunately, it appears that the DPPC in this instance is seeking to emulate the Executive Office of Elder Affairs, which investigates abuse and neglect of persons 60 and older. The EOEA’s enabling statute already states that the agency’s records are not public.
As I’m sure you know, the presumption of the state’s public records law is that all state governmental records are public documents unless they are explicitly exempted from disclosure by statute, or they fall under an exemption to the public records law itself M.G.L. c. 4, s. 7(26). Our concern is that H.117 would impose such a blanket restriction on the disclosure of all DPPC records.
In 2015, The Boston Globe organized coordinated editorials among several media outlets criticizing the state’s public records supervisor for rulings allowing the withholding of records from public disclosure by state agencies. The Globe’s editorial charged that the supervisor was “interpreting the regulations governing the privacy of criminal records too broadly.” The editorial added that the state’s criminal-records law, in particular, “was never intended to open up a memory hole to conceal unflattering information about the police.”
That is similar to the argument we have been making in seeking to obtain investigative records from the DPPC. And now, H. 117 would make that cloak of secrecy even more opaque.
On its website, in fact, the DPPC says the reason for the non-public records provision in H.117 is to make the DPPC’s enabling statute conform to the EOEA’s statute in order to give persons with developmental disabilities “the same safeguards provided for the records of elders.” (Please note that the bill numbers on the DPPC website appear to be from the prior legislative session.) But that only raises further concerns for us about the potential secrecy of the EOEA’s records. EOEA investigates allegations abuse and neglect committed against people over 60.
As noted, the enabling statute of the EOEA — M.G.L. c. 19A, § 23 — explicitly states that departmental records containing confidential information are not public. The EOEA statute goes even further, giving the Elder Affairs Department the authority to actually destroy investigative records about abuse allegations if the department finds that the allegations are unsubstantiated. This seems to us to be bad law and not one that the DPPC should be emulating.
Finally, I would note that while the DPPC’s regulations explicitly state that the DPPC’s records are not public (118 CMR 9.00 et seq.), the agency’s enabling statute says only that the DPPC should disclose “as little personally identifiable information as possible.” There is nothing in the enabling statute that currently says the agency’s records are not public, so, once again, the presumption is that those records are indeed public.
The DPPC’s regulations clearly go further in shielding the agency’s records from public disclosure than does the agency’s enabling statute, and we think the regulations should therefore be changed to conform with the enabling statute. H.117, however, would do the opposite by making the statute conform to the regulations.
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 taken by Flickr user RestrictedData. It was used with permission under a CC 2.0 license.
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