COFAR blog

A bill in the state Legislature, which would draw an ever-tighter cloak of secrecy around investigative reports on abuse and neglect of persons with disabilities in Massachusetts (H.117), appears to be going relatively unnoticed on Beacon Hill and by the media.

Section 17 of the bill would effectively exempt all investigative reports and records of the Disabled Persons Protection Commission (DPPC) from public disclosure. Under the section, the DPPC’s records could be kept entirely secret even if all personal information in them 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. That is what we think is happening with Section 17 of this bill.

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. Without access to the agency’s investigative reports, the public will have much less understanding, not only of the scope and nature of the problem of abuse and neglect, but what the DPPC and other agencies are doing about it.

Overall, H.117 and its counterpart in the Senate (S.53 ) propose making a number of changes to the DPPC’s  enabling statute that seem helpful, such as replacing the term “disabled person,” with “person with a disability.” That latter term avoids the stigma associated with describing an individual totally in terms of their disability.

COFAR member Richard Buckley (left) and Vice President Anna Eves testify Tuesday at the State House about abuse and neglect of the developmentally disabled. At the hearing, COFAR offered testimony against proposed DPPC secrecy language in Section 17 of H.117.

However, Section 17 is not at all innocent, in our view. It would add language to the DPPC’s enabling statute stating that the agency’s records containing confidential or personal data “shall not be public records.” (my emphasis)

That proposed language is not needed to protect the personal privacy of victims of abuse and neglect or others involved in those investigations. The DPPC’s enabling statute currently states that the DPPC should disclose “as little personally identifiable information as possible.” That language gives the DPPC the discretion to protect the privacy of all parties involved.

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.

At a legislative hearing this past Tuesday on H.117 and other bills concerning abuse of persons with disabilities, DPPC Executive Director Nancy Alterio touted the anti-stigmatizing aspects of H.117, but did not mention Section 17. Both Anna Eves, COFAR’s vice president, and I testified before the Children, Families, and Persons with Disabilities Committee against the section.

The committee members didn’t ask us any questions about our objection. We may have caught them by surprise about it.

The House and Senate versions of the bill were filed by Representative Sean Garballey and Senator John Keenan.

In February, Garballey got back to me and said he wasn’t aware of the implications of the Section 17, and would ask the DPPC about it. He said he agreed with us that the enabling statute should not completely restrict the disclosure of the DPPC’s records.

The chief of staff for Sen. Keenan was more noncommittal about the bill, but also said she would look into and ask about our concerns.

The mainstream media don’t seem to be paying attention this year

On March 21, I emailed Boston Globe Editor Brian McGrory, laying out our concerns in detail and asking whether the Globe might take a position against the language in Section 17. To date, McGrory has not responded to that or to a subsequent email I sent about the bill on April 5 and again on April 8 to The Globe and other news organizations around the state.

The New England First Amendment Coalition published our email to mainstream media outlets on its blogsite on April 8. But we have gotten little or no response from the rest of the media either.

Our media list includes current editors and other staff on 24 newspapers, including the Globe and Herald; major chains such as the North of Boston Media Group;  the Associated Press, the State House News Service; CommonWealth Magazine; major Boston television news outlets; and NPR radio affiliates WBUR and WGBH.

The Globe in the past has taken strong stances in favor of the public disclosure of state records. In 2015, the paper 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 2015 editorial maintained 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 made in seeking to obtain investigative records from the DPPC. And now, Section 17 would make that cloak of secrecy even more opaque.

DPPC heading in the direction of the Elder Affairs office

Unfortunately, with the introduction of Section 17 in H.117, it appears that the DPPC is seeking to emulate the Executive Office of Elder Affairs (EOEA), which investigates abuse and neglect of persons 60 and older. The EOEA’s enabling statute does state that the agency’s records are not public.

On its website,the DPPC states that 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.

As noted, the enabling statute of the EOEA, M.G.L. c. 19A, s. 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.

The DPPC’s regulations go further than the enabling statute in exempting records from disclosure

While the DPPC’s regulations explicitly state that the DPPC’s records are not public , the agency’s enabling statute, as noted, says only that the DPPC should disclose “as little personally identifiable information as possible.”

The DPPC’s regulations go further in shielding the agency’s records from public disclosure than does the enabling statute, and we think the regulations should therefore be changed to conform to the enabling statute. H.117, however, would do the opposite by making the statute conform to the regulations.

We hope The Globe and other media outlets in Massachusetts wake up to the threat this bill poses to transparency in state government. The DPPC receives tens of thousands of allegations of abuse and neglect each year, and “screens in” several thousand of those for investigation.

It is already extremely difficult to obtain those records from the DPPC even in redacted form. H.117 would make it virtually impossible to obtain those records, and would move state government that much further away from operating with openness and transparency.