DPPC seeks to keep all investigative records in death case secret

(Cross-posted from The COFAR Blogsite)

It would be nice if the Disabled Persons Protection Commission was on the side of the disabled and their families, but it often seems that the agency is more interested in protecting its turf.

We’ve been involved in a battle since February for the DPPC’s investigative records regarding the death of Karen McGowen, a client of the Department of Developmental Services.  Ms. McGowen was killed in an apparent accident last November. She reportedly fell from a wheelchair lift while getting out of a van at her DDS-funded day program in Pittsfield.

The DPPC, which is charged with investigating or supervising investigations of abuse and neglect of disabled adults under the age of 60, has confirmed that it is investigating Karen McGowen’s death.

Little if any information has been publicly released about the incident. As a nonprofit advocacy organization for persons with developmental disabilities and their families, we have been  trying to determine the circumstances under which her death occurred.

On February 13, the DPPC denied my request for the records in the case, stating that the investigation was incomplete. But in his letter denying the records, Andrew Levrault, the DPPC’s assistant general counsel, added that even when the investigation is completed, any records the Commission has on the case would be exempt from public disclosure and that I would need permission from Karen’s legal representative to obtain them.

The problem is we don’t know who Karen’s legal representative might be or even if she had a legal representative.

We have often advocated for more funding for the DPPC, which operates with so few resources that it has to refer most of its investigations to the Department of Developmental Services. So it’s doubly disappointing that to the extent the Commission does get involved in these crucial investigations, it has taken the position that the work it does must be kept secret.

Rebecca Murray, the state’s Public Records Supervisor, sided with us in the matter in a decision on March 22.  Murray’s decision stated that the DPPC’s February 13 letter to us  “did not contain the specificity required in a denial of access to public records…” The DPPC, Murray said, had merely cited exemptions to the Public Records Law without further explanation. She ordered the Commission to provide me with responsive records within 10 business days.

We’re not sure if Murray’s decision is precedent setting, although it does appear to clear up some confusion we’ve had as to whether we are entitled to DPPC reports in cases in which we are not either the guardians of the victims in the case or the complainants.

The DPPC, however, has a different view of the Public Records Law than does the Public Records Supervisor. On March 29, the Commission asked Murray to reconsider her March 22 decision.

Levrault presented the Commission’s arguments in favor of withholding all records in the case in a 10-page letter to Murray.

But Attorney Levrault’s letter continues in our view to lack the specificity required by Murray to justify withholding documents, and unfortunately leads us to the conclusion that the Commission is more concerned about conducting its work in secret than in satisfying the public interest.

Attorney Levrault’s March 29 letter

In his letter to Murray, Attorney Levrault noted that the records in the possession of the DPPC include three “intakes,” an “initial response” in the case, and a draft investigation report. As of March 29, the DPPC investigation was still pending, he said.

Levrault first cited an exemption to the Public Records Law that allows agencies to keep records secret if existing statutes expressly provide for that. In this case, the DPPC’s enabling statute says the agency “shall promulgate regulations to exclude personally identifiable information regarding the subjects of investigations…”

Levrault argued that  it would be impossible for the DPPC “to protect the interests of all parties in the DPPC investigation through redaction of personally identifying information.”  As a result, he stated, the Commission has concluded that the entire record in the case must be kept secret.

However, Levrault’s letter provided no specifics, as required by Murray’s March 22 decision, to explain why it would be impossible to protect the various parties’ interests.

We would note, moreover, that the subject in this case is deceased. It has been our experience that when agencies argue for protection of the privacy of people who are deceased, it is usually a cover for unwarranted secrecy.

In fact, Public Records Supervisor Murray stated in a March 29, 2017, decision involving an appeal for records by The Cape Cod Times that “…it is generally held that one’s right to privacy is extinguished at death.” Murray noted that the only privacy interest that survives an individual’s death is their interest in their medical information.

Levrault’s letter did go on to cite an exemption to the Public Records law that concerns medical information relating to a “specifically named individual” and to any other materials that might constitute “an unwarranted invasion of personal privacy.”  Again, without providing any specific information in support of his claim, Levrault stated that the documents we are seeking contained information “that could significantly impact the reputations of the parties involved in the allegations…”

“There is no showing here,” Levrault continued, “that the public interest in the identities and actions of the alleged victim, alleged abusers, or other parties involved in the abuse investigation outweighs the strong privacy interests of the parties whose information would be disclosed.”

First of all, we are not seeking anyone’s medical information or any other information that might be personally embarrassing, but are seeking only investigative documents involving a fatal incident.

Secondly, it is a major stretch to argue that there has been no showing that there is a strong public interest in the circumstances of this case, particularly given that Karen’s death is the subject of an acknowledged investigation of possible abuse or neglect.

An attorney for the Public Records Division indicated that the DPPC will face a tall hurdle in attempting to demonstrate that it is entitled to withhold all records in their entirety from public disclosure just because those records refer to a specifically named individual. The DPPC would have to prove that “every single word in the records revealed an intimate detail” about that individual, the attorney said.

Levrault then cited another Public Records Law exemption relating to investigatory materials, the disclosure of which “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.”

Levrault stated that the exemption is needed to allow investigators to provide witnesses with an assurance of confidentiality “so that they will speak openly and voluntarily about matters.”

However, this argument still lacks specificity given that Levrault did not even say whether there is an ongoing criminal investigation in this case. Moreover, the statement about providing witnesses with an assurance of confidentiality does not recognize that confidentiality of witnesses can still be maintained by redacting their names and other identifying characteristics.

Finally, Attorney Levrault argued that the investigation report itself was still in draft form and therefore could not be released. However, this statement did not address the DPPC’s position that all of the records we have requested should be withheld in their entirety.

In sum, what the DPPC actually appears to be arguing here is that the Commission has no obligation to ever publicly release any investigative report about the abuse or neglect of any “specifically named individual.” The absurd logic underlying this argument is that the supposed violation of an individual’s privacy in releasing the documents, even if the person died as a result of the abuse or neglect, is somehow worse than the actions that caused their injuries or death.

In her March 22 decision in the case, Public Records Supervisor Murray noted that the DPPC “bears the burden to prove with specificity any exemption (to the Public Records Law) that applies.”

It seems to us that in his March 29 letter to Murray asking for reconsideration of her decision, Attorney Levrault not only did not meet that burden of specificity, he did not even go any further in trying to meet it than in his original denial of our original records request in February.