Current through Register 1531, September 27, 2024
(1)
Limitation on Release of Information. For the purposes
of dissemination, the records of the Commission shall not be considered "public
records" and any release of said records shall be pursuant to the provisions of
M.G.L c. 4, § 7, cl. 26, c. 66, c. 66A, and
118 CMR
9.00. The following information shall be confidential
and shall not be disclosed or otherwise made available to any person, except
duly authorized staff of the Commission and the duly authorized staff of an
agency within the Executive Office of Health and Human Services to which the
Commission has referred a report of abuse for investigation or for the
provision of protective services:
(a) all
personal data contained within the report of abuse including, but not limited
to, personally identifying information of the person with a disability who is
the alleged victim of abuse, of the alleged abuser, of the person who made the
report of abuse to the Commission, and of any other third-party;
(b) any and all notes, papers, documents or
other investigative materials including, but not limited to, interview
summaries, collected or compiled by personnel duly authorized by the Commission
during the course of an investigation;
(c) all material subject to "peer review
privilege" pursuant to M.G.L. c. 111, § 204 and within the possession of
personnel duly authorized by the Commission; and
(d) the information maintained in the
registry, including the records of its proceedings.
(2)
Release of Investigation
Reports to Appropriate Governmental Agencies. Consistent with
M.G.L. c. 19C, § 3, as part of its case processing, the Commission shall
forward a copy of the Investigation Report or any information maintained in the
registry or the records of its proceedings, pursuant to M.G.L. 19C, §
15(e) to the appropriate agency within the Executive Office of Health and Human
Services and any other agency of the Commonwealth, to facilitate the
performance of that governmental agency's statutory functions, including such
releases authorized by
118 CMR
5.02(4)(b)2:
Investigation Report.
(3)
Discretionary
Release.
(a) Consistent with
M.G.L. c. 19C, § 3, the Commission may release any records, documents,
data, or information that serves a public interest. The exercise of the
Commission's discretion shall be based upon a balancing of the respective
interests of the public in the protection of persons with disabilities, the
privacy of the person whose records are being considered for release, and that
such a release serves a public interest in protecting citizens of the
Commonwealth. In any event, the discretionary release of information shall
contain only that much of the personally identifiable and confidential
information the disclosure of which is required by the public interest
underlying the release of the information; and
(b) Personally identifying and confidential
information of data subjects and of reporters of abuse that are contained in
the records of the Commission shall be redacted from the records when
disclosure of such information is not required by the public interest
underlying the discretionary release of such records.
(4)
Release Pursuant to Legal
Process. Subject to the provisions of
118 CMR
9.00, whenever information or data contained in the
documents or data in the possession of the Commission is sought by compulsory
legal process in any civil or criminal proceeding, the Commission shall respond
to the legal process as the Commission deems appropriate pursuant to M.G.L. c.
19C, § 3 and/or
118 CMR
9.00 which may include, but is not limited to,
requesting a protective order or an order quashing the process.
(5)
Disclosure of Records to the
District Attorney and the Attorney General.
(a) Where litigation or other legal
proceeding has been threatened or instituted by a data subject against the
Commonwealth, the Commission or a referral agency, or an official or employee
of any said entity arising from his or her official duties or scope of
employment on behalf of the Commission, any personal data concerning said data
subject, held by the Commission, including in the registry or the records of
its proceedings, pursuant to M.G.L. 19C, § 15(e) which is relevant to a
determination of the issues in dispute, shall be furnished to the Attorney
General or authorized assistant attorney general, who may further disclose such
personal data to the extent he or she deems necessary for purposes of
representing the defendant(s), subject to the conditions in 118 CMR
9.03(5)(a).1 and 2.:
1. Disclosure shall be
furnished in response to a written request from the office of the Attorney
General which shall indicate the purpose for which the personal data is
requested and identify the data requested.
2. Personal data of persons not parties to
the litigation or other legal proceeding may be redacted by the Commission to
protect the privacy interests of such persons.
(b) In the event that any data maintained by
the Commission, including in the registry or the records of its proceedings,
pursuant to M.G.L. 19C, § 15(e) indicates a violation or potential
violation of law, whether civil, criminal or regulatory in nature, and whether
arising under a state law or regulation, rule or order issued pursuant thereto,
consistent with M.G.L. c. 19C, § 3, the relevant data may be referred to
the District Attorney for the county within which said violation occurred or
may occur, to the Attorney General, and to the appropriate regulatory agency,
as the case may be, to enforce or implement the statute, rule, regulation or
order issued pursuant thereto, or to investigate or prosecute such
violation.
(c) Nothing in 118 CMR
9.03(5) shall be construed to authorize the Commission or a referral agency to
release information the disclosure of which is prohibited by any statute other
than M.G.L. c. 66A.
(6)
Release of Information to Data Subjects.
(a)
Generally.
1. Subject to the provisions of M.G.L. c.
19C, § 3 and c. 66A, under which such disclosure may be made, any person
who is mentioned in an investigation report shall have access to, and may have
a copy of, that portion of the investigation report in which he or she is
mentioned.
2. To obtain a copy of
such information, any data subject including, but not limited to, the person
with a disability and the alleged abuser, or their respective legal
representatives, must file a written request for such information with the
Commission.
3. The Commission shall
respond to said request, subject to those restrictions in
118 CMR
9.00, pursuant to the time frames and procedures
established in M.G.L. c. 66 and 66A.
(b)
The Person with a
Disability.
1. Subject to
118 CMR
9.00, M.G.L. c. 19C, § 3 and c. 66A, information
contained in the Commission's investigation report regarding the person with a
disability shall be available to that person with a disability, his or her
legal representative or his or her legally appointed conservator or guardian
where the person with a disability has been determined by a court of competent
jurisdiction to be incapacitated.
2. When requesting records, the said legally
appointed conservator or guardian shall provide the Commission with court
documentation verifying his or her appointment by a court of competent
jurisdiction.
(c)
The Alleged Abuser.
1. Subject to
118 CMR
9.00, M.G.L. c. 19C, § 3 and c. 66A, information
contained in the Commission's investigation report regarding the alleged abuser
shall be available to that person or his or her legal representative unless the
Commission determines that the granting of the request would be contrary to the
safety of the person with a disability.
2..
The decision of the Commission not to release such records shall be final and
not subject to administrative review: however, the aggrieved party may exercise
any other rights or remedies which may be available at law.
(7)
Other Provisions.
(a)
Prior to the release of any records pursuant to 118 CMR 9.03, the general
counsel for the Commission or his or her designee shall review the records and
remove any portion of the records which:
1.
may be considered attorney work product or privileged;
2. may be personally identifying or
confidential information regarding any data subject, including the individual
who reported the abuse to the Commission; and
3. is subject to any further provisions
contained in
118 CMR
9.00, M.G.L. c. 19C, §§ 3 and 15, c. 66A,
and/or c. 4, § 7, cl. 26.
(b) Upon the written request of any
individual or any authorized representative of the individual as to whether the
Commission has any records in its possession regarding that individual the
Commission shall respond pursuant to
118 CMR
9.00, M.G.L. c. 19C, § 3 and/or c. 66A.
(c) The Commission may deny access to
information which, at the time the request for such data is received by the
Commission, is subject to further investigation by the Commission, a referral
agency, or another law enforcement agency, or a registry proceeding, provided
that such denial of access shall not in any way affect a data subject's rights
under judicial or administrative discovery procedures. Such denial and
notification thereof shall be governed by M.G.L. c. 66A, and may continue until
said further investigation has been completed, any resulting administrative or
judicial proceeding has concluded or one year from the commencement of said
further action, whichever is sooner.
(d) Neither the Commission nor the referral
agency shall disclose any information about a pending investigation or registry
proceeding, except as may be determined by the Commissioners or their designee
to be necessary to fulfill the purposes of M.G.L. c. 19C.
(e) The Executive Director, General Counsel
and/or a designee of either may determine, in their discretion, that due to
either the specific nature of the request and/or the extensive publicity
accorded an investigation or a registry proceeding, that mere removal of
identifying personal data would be insufficient to protect existing privacy
interests, or that disclosure would not be in the public interest; and that
accordingly, certain documents or data otherwise subject to disclosure should
not be disclosed. In such event, the Executive Director, General Counsel, or a
designee shall file in the investigation case file a statement of such
determination, together with a specification of the document(s) or data to be
withheld as an exemption to the definition of a "public record" set forth in
M.G.L. c. 4, § 7, cl. 26, the conditions of withholding such information
and a brief statement of reasons for withholding such information. Such
withholding of data shall be governed by M.G.L. c. 66A, § 2(i).
(f) Any employee of the Commission who is
found to have breached the confidentiality of a data subject through the
willful violation of
118 CMR
9.00, in addition to any other applicable penalty,
shall be subject to disciplinary action including, but not limited to,
reprimand, suspension, dismissal or other such action consistent with the rules
and regulations of Massachusetts governing its employees, any relevant
collective bargaining agreement or any other contract, and said employee may be
denied future access to personal data.
(g) When any employee of a referral agency is
found by the Commission to have breached the confidentiality of a data subject
during the course of an investigation through a violation of
118 CMR
9.00, the Commission shall refer the matter to the
appropriate agency of the Commonwealth for consideration by that agency of
imposition of disciplinary measures in accordance with the requirements of any
applicable law, regulation, or collective bargaining agreement.
(h) If an employer has been found to have
breached the confidentiality of data subjects, which the employer is entitled
to access pursuant to M.G.L. c. 19C, §§ 15(d) and (e), the Commission
may take any and all actions necessary to address said breach.