COFAR blog

Last week, we filed the second of two appeals with the state Public Records Division for eight internal emails from the Department of Developmental Services (DDS) that may concern plans to close or consolidate state-operated group homes.

After two months of negotiations with DDS last fall, we had narrowed our Public Records request to just those eight emails. But following the negotiations, DDS simply declined in December to provide them, contending they are exempt from disclosure under the state’s Public Records Law.

As of the filing of our second appeal last week, our battle with the Department for records concerning its state-operated group home policies had stretched to nearly nine months.

In denying our request for the eight emails in December, DDS cited what is known as “Exemption d” to the Public Records Law, which says that a state agency can decline to disclose internal records “relating to policy positions being developed by the agency.”

As I’ll explain further below, we have countered that Exemption d does not apply in this case because the policy in question was adopted by the administration last August, and was no longer being developed when we requested the emails. We have suggested that the state Public Records Supervisor Rebecca Murray inspect the emails herself to determine whether Exemption d does or does not apply to them.

We’ve been concerned about the future of the state-operated group home network for years. While those homes are likely to recieve a nominal increase in state funding in the coming fiscal year, it is clear that DDS has been allowing the number of residents in the state-operated group home network to drop in the past several years. Yet the Department has not provided any public information about its intentions regarding the future of the state-run residental system.

State-operated group home network facing unique pressures

We view the state-run group home system as as a crucial backstop for care in the DDS system as a whole. Staff in the state-run network generally receive higher pay and benefits and more training than their counterparts in the corporate provider system.

Yet the state-operated system has been facing unique pressures, particularly since the start of the COVID crisis. Last October, we received a report from a COFAR member that up to seven state-run homes in the southeastern region of the state had been closed because staff in them had not been vaccinated for COVID.

Just weeks prior to that – in August — Governor Baker issued an executive order requiring all state employees to be vaccinated by October 17 or ultimately be terminated. That vaccination mandate applies only to staff of state-run residential facilities. It does not apply to the much larger network of DDS-funded group homes that are run by corporate providers.

Baker administration would not provide information

We initially emailed DDS Commissioner Jane Ryder and the press office at the Executive Office of Health and Human Services (EOHHS) on October 14 with questions about the reports of closures and consolidations in the state-operated group home network.

Ryder never responded to our query. A spokesperson for EOHHS said in a response to our email that we would have to file a Public Records Request for that information.

Records request narrowed from more than 1,000 emails to just 8

Based on the EOHHS response, we filed a Public Records request with DDS on October 15 for internal records that concerned closures or consolidations of DDS state-operated group homes due to unvaccinated staff or for other reasons.

In an initial response to our request on October 29, DDS stated that there were potentially 1,600 emails responsive to our request, and that producing the documents would require us to pay a $1,000 fee.

We agreed to narrow our request. And in a December 13 written response to us, a DDS attorney said the narrowed search had turned up a total of eight emails that were determined to be responsive to our request.

DDS cites “implementation of” the governor’s executive vaccination order as an “ongoing and evolving” policy

But despite identifying the eight emails as responsive, the DDS attorney stated in the December response that all eight of those emails were being withheld because they fell under Exemption d to the Public Records Law.

The attorney described the “implementation” of the governor’s vaccination order as “an ongoing and evolving policy matter.”

Renewed request for the 8 emails

In May of this year, after an initial appeal that did not result in the production of any additional documents by DDS, we tried again. We renewed our request for just the eight emails with the intention of appealing for a second time if DDS once again cited Exemption d. That is, in fact, what happened.

In a June 13 response, the DDS attorney stated that the “implementation” of the governor’s executive order was “still an ongoing and evolving policy matter which is still subject to the deliberative exemption.”

This time, the DDS attorney stated that:

While the governor’s executive order was implemented on August 19, 2021, ongoing and evolving policy matters continue related to the Agency’s implementation of the Executive Order, and the deliberative exemption applies to those policy decisions.

The DDS attorney added that the governor’s executive order had:

…impacted the discussion about and process of handling staffing shortages at DDS. The vaccine policy is still impacting the Department’s staffing shortage. Therefore, the records are still exempt under (Exemption d). (My emphasis)

DDS conflates policy implementation with policy development

In our second appeal of DDS’s response — which we filed on June 23 — we argued that the Department was “conflating the separate steps of policy development and policy implementation.”  We noted that Exemption d refers to policy positions “being developed” by an agency. The exemption does not say that records relating to policy positions that are  “being implemented” are exempt from disclosure.

We pointed out that public policies or policy positions are normally implemented after they have been developed or formulated. The implementation of policies can go on for years or decades or more. As we put it:

Certainly, the intent of “Exemption d” was not to allow agencies to assert that so long as policies are continuing to be implemented, all records concerning those policies remain exempt from disclosure.

We added:

As of June 23, now more than 10 months after the governor signed Executive Order 595, (DDS) says the policy is “still impacting the Department’s staffing shortage,” and has “impacted the discussion about and process of handling staffing shortages at DDS.” Here again, (DDS) appears to be talking about problems or issues the Department is having in implementing the executive order.

Finally, we suggested that the Public Records Supervisor review the eight emails in-camera to determine whether or not Exemption d does or does not apply to them.

In sum, we don’t know what is in the eight emails or whether the emails might shed any light on DDS’s plans for the future of the state-operated group home network. But given the administration’s unwillingness to provide any public information about those plans, all we can do is to fight for documents that are legally available and that might disclose the administraton’s intentions.

The fact that DDS is fighting back so hard to prevent the release of just those eight emails leads us to believe we may be onto something in seeking their release.