The Commonwealth of Massachusetts Executive Of?ce of Health and Human Services Department of Children and Families Of?ce of the General Counsel 600 Washington Street, 6th floor Boston, MA 021 ll Tel (617) 748-2020 0 Fax (617) 261?7428 ANDREW TODD ROME CHARLES 13- BAKER General Counsel Governor 0 PATRICIA CASEY KARYN E. POLITO Deputy General Counsel Denim?: Governor CRISTINA TEDSTONE MARYLOU SUDDERS Deputy General Counsel Secretary 0 LINDA S. SPEARS Commissioner September 18, 2015 BY EMAIL Jenifer B. McKim New England Center for Investigative Reporting WGBH News 1 Guest Street Boston, MA 02135 Re: Response to Secretary of State?s September 14, 2015 letter on your appeal of the Department?s response to your June 18, 2014 public records request Dear Ms. McKim: This responds to the September 14, 2015 letter from the Supervisor of Records of the Secretary of State?s Of?ce relating to your appeal of the Department?s response to your June 18, 2014 public records request. Our understanding is that, in addition to the records provided to you relating to substantiated ?ndings or information of abuse or neglect that resulted in a child fatality, you are now also seeking information regarding MGL c. 119, 51A and 51B reports that were unsubstantiated and not relevant to the child?s fatality. These reports are exempted by statute from disclosure under the Public Records Law, MGL c. 4, 7(26). Under both-Massachusetts and federal law, all reports of abuse or neglect are strictly con?dential, and disclosure is prohibited except in limited circumstances. Under Massachusetts Law 51A and 51B reports and related information ?shall be con?dential? except where the report ?is provided to the child?s parent, guardian, or counsel, (ii) the reporting person or agency, the apprOpriate review board, (iv) a child welfare agency of another state for the purpose of assisting that agency in determining whether to approve a .- Supporting Children a Strengthening Families prospective foster or adoptive parent, or a social worker assigned to the case.? MGL c. 11966A (limiting release of information concerning data subjects), MGL c. 112, ??135-l35B (limiting release of social worker/client communications) and MGL c. 4, cl. 26(c) (?materials or data relating to a speci?cally named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy?). Similarly, the federal Child Abuse Prevention and Treatment Act (CAPTA), 42 USC 5101 et seq, prohibits the disclosure of all child abuse and neglect reports and records ?in order to protect the rights of the child and the child?s parents or guardians,? except to certain authorized individuals and entities (that do not include public disclosure pursuant to a public records request). CAPTA section Additionally, these reports and related information are exempt from disclosure pursuant to 42 USC ?671(a)(8) (Title VI-E of the Social Security Act) and 42 CFR ?205.50 (Federal Regulations of Title VI-E). The exception to the prohibition on disclosure of such records to the public is the requirement, under CAPTA, that a state disclose ??ndings or information about the case of child abuse or neglect which has resulted in a child fatality or near fatality.? CAPTA section It was under this exception that the Agency previously provided to you information relating to substantiated ?ndings of abuse or neglect that resulted in a child fatality. However, where a child has died, and prior or unrelated allegations of abuse or neglect are unsupported and unsubstantiated, these records are not pertinent ?to the case of child abuse or neglect which resulted in a child fatality or near fatality? which is the requirement of CAPTA. In these circumstances the strict prohibitions on public disclosure under both state and federal law apply. Consistent with the public policy concerns underlying Massachusetts and federal child protection laws, these strict prohibitions on public disclosure are necessary ?to protect the rights of the child and the child?s parents or guardians.? As such, the Department is statutorily prohibited from producing, and therefore did not produce to you, unsupported and unsubstantiated 51A reports. Exemption to the Massachusetts Public Records Law: materials ?specifically or by necessary implication exempted from disclosure by statute.? MGL c. 4, 7(26). Sincerely, Andrew Todd Rome General Counsel Cc: Shawn A. Williams, Supervisor of Records at pre@sec.state.ma.us