COFAR blog

The state public records supervisor ordered the Department of Developmental Services (DDS) this week to provide records we have been seeking since early July on the numbers of DDS clients who have died since January and their causes of death.

It’s another win for us in our public records battles with several state agencies for COVID-related information. But these victories have had a hollow feeling lately because, as we’ve reported, these agencies have largely not been complying with the supervisor’s orders. We’re hoping this situation changes soon.

In this case, we have been trying to determine the percentage of total deaths in the DDS system that have been due to COVID-19.

DDS first denied the records in late July and then again in early September, arguing that the information is kept in each client’s “confidential client record,” and, as such, is exempt from disclosure under the Public Records Law. Secondly, DDS argued that it has not attempted to aggregate that data and is therefore not required to create such a record.

Public Records Supervisor Rebecca Murray essentially sided with us in our contention that both of DDS’s arguments for denying the records were flawed.

We argued that DDS’s claim that the information is exempt is based on a technicality that contradicts the spirit of the Public Records Law. The law exempts records that would disclose a client’s identity; but such a disclosure would not happen in this case.

Even though the cause of death is contained in a client’s confidential record, we are not seeking that full record and would not be able to determine any client’s identity based on an aggregate listing of causes of death.

In her September 22 decision, Murray wrote that, “The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records.”  She added that:

…it appears that the Department (DDS) does possess cause of death information, although not in aggregated form. Where the Department can redact the remainder of the client records that contain this information, it is unclear how providing this information would require “creation of a new record” ….Therefore, I find that the Department has not met its burden in responding to this request.

Murray ordered DDS to provide us with records “consistent with this order, the Public Records Law and its Access Regulations, within 10 business days.”

Hopefully, DDS will comply with the order. But, as we have previously noted, the Executive Office of Health and Human Services (EOHHS), the Department of Public Health, and DDS do not appear to feel that they are compelled to comply with Murray’s orders.

EOHHS has yet to comply with an order Murray issued on July 24 to provide us with clarification whether the agency possesses internal emails on mandatory staff testing in the DDS system.  EOHHS has also not yet complied with an August 18 order to provide us with additional emails regarding public reporting of COVID results.

Finally, DPH has not complied with an order on August 10 to provide us with records on payments made to Fallon Ambulance Service, which has been conducting mobile testing for COVID-19 in the DDS system.

As I said, we’re hoping these agencies begin complying with the law. There are a few signs that that may be happening. I was told this morning by the public records supervisor’s office that EOHHS would have a response later today for us on the mandatory staff testing records. It would be their first response since July.

That would be good news. But the question remains: Will we ever see any of the actual records we’ve requested from EOHHS or any of these other agencies? I guess we’ll fully believe it when we see it.