(Cross-posted from The COFAR Blogsite)
In a reversal of her earlier decision, the state’s Public Records Supervisor has issued a final determination that the state Disabled Persons Protection Commission can keep investigative reports about the abuse or neglect of any “identified individual” secret.
We were surprised and disappointed by the final decision by Public Records Supervisor Rebecca Murray, which was issued on April 20. It may become nearly impossible for the public to learn the outcomes of many, if not most, investigations of abuse and neglect of developmentally disabled persons as a result.
On May 16, Murray declined my request that she reconsider and restore her original March 22 order to the DPPC. That original determination had appeared to recognize at least some DPPC reports as public records.
In her final decision on April 20, Murray focused on one exemption to the Public Records Law [known as “Exemption (a)”], which appears to us to give blanket authority for the enactment of statutes and regulations that can potentially exempt all records of particular state agencies from disclosure.
Murray’s interpretation of Exemption (a), in our view, could establish a precedent under which blanket secrecy laws and regulations could be enacted on behalf of agencies throughout the state government. That would be the case even though the Public Records Law supposedly establishes a presumption that all governmental records are public and that exceptions to that rule must be considered on a case-by-case basis.
Murray’s two contradictory decisions stem from an appeal I filed in February based on my request to the DPPC for 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, confirmed it was investigating Karen McGowen’s death.
DPPC headquarters in Braintree (Google Maps image)
On February 13, the DPPC denied my request for the records in the case, stating that the investigation was incomplete. But in denying the records, the DPPC’s assistant general counsel stated that even when the investigation was completed, any records the Commission had on the case would be exempt from public disclosure and that I would need permission from Ms. McGowen’s legal representative to obtain them.
The problem, as I stated, is that even if we were able to find Ms McGowen’s legal guardian, that individual, if he or she exists, would have to agree to authorize the release of the records in the case to us. That effectively nullifies these as public records.
In denying the records, the DPPC cited Exemption (a) as well as other exemptions to the Public Records Law, arguing that because I had sought records “regarding an identified individual and (because) redaction of personal data would be insufficient to protect existing privacy interests, … the responsive materials in their entirety cannot be disclosed.”
In her prior decision on March 22, Murray had determined that none of the exemptions cited by the DPPC applied in the case because the DPPC had provided no specifics to explain why it would not be possible to protect the various parties’ privacy interests through the redaction of names and other identifying material.
Murray had gone on to state that the DPPC “bears the burden to prove with specificity any exemption (to the Public Records Law) that applies.”
However, in her April 20 decision, Murray no longer noted the DPPC’s lack of specificity. She concluded, in discussing Exemption (a), that the DPPC’s enabling statutes and regulations:
…provide that the records of the Commission are not public records … Additionally, the regulations provide that the Executive Director, General Counsel and/or designee has the discretion to determine if records subject to disclosure should not be disclosed due to the specific nature of the request (my emphasis).
It seems to us that to the extent that Exemption (a) — or at least Murray’s interpretation of it — permits the enactment of statutes and regulations that classify all records of an agency as non-public, Exemption (a) creates a major loophole that circumvents the intent of the Public Records Law.
The absurd logic underlying the privacy argument in this case is that the supposed violation of Karen McGowen’s privacy in releasing the documents is somehow worse than revealing the actions that caused her death.
In this case, in fact, the “identified individual” in the case, Karen McGowen, is deceased. Murray herself stated in a 2017 determination that privacy interests, other than in medical information, are “extinguished at death.” We are not seeking medical information in this case.
Moreover, we have to wonder why Murray didn’t seek to review the materials we are requesting to determine whether redactions to protect privacy interests would be possible.
As I stated before, it’s disappointing that to the extent the DPPC 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.
Despite what the DPPC apparently thinks, the public has a strong interest in knowing the outcomes of the Commission’s investigations. If the Commission finds, for instance, that the wheelchair lift that Ms. McGowen used was defective, it would be important that the public know this.
If the DPPC finds that the staff of a particular facility failed to provide proper care to an individual because they lacked proper training, the public should know that too. As things currently stand, these are the types of things the public may never find out.
I hope Elizabeth Warren reads this post before she considers endorsing Galvin.