COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, SS. SUPERIOR COURT DEPARTMENT
CIVIL ACTION NO. 07-1490-D
DISABILITY POLICY CONSORTIUM, )
INC., )
Plaintiff, )
) COMPLAINT FOR
v. ) DECLARATORY AND
) INJUNCTIVE RELIEF
CUSTODIAN OF PUBLIC RECORDS, )
MASSACHUSETTS EMERGENCY )
MANAGEMENT AGENCY, )
Defendant. )
Context of this Action
This action has been filed pursuant to the provisions of M.G.L. c.231A, §1; M.G.L. c.66, §10; 950 CMR 32:00; and M.G.L. c. 4, §7,cl 26(n). The plaintiff Disability Policy Consortium is a charitable organization whose membership is composed primarily of individuals with disabilities. Based on published reports of public and private agencies and organizations, plans to care for and protect individuals with disabilities in Massachusetts in the event of emergencies and disasters are inadequate. Contrary to the stated policies of the President of the United States and the Secretary of the United States Department of Homeland Security, individuals with disabilities have been excluded from meaningful participation in planning for emergencies in Massachusetts.
In order to ensure that emergency planning encompasses the unique needs of individuals with disabilities, the plaintiff has been compelled to seek public records which document, in detail, the provisions that have been included in emergency planning to protect the safety and welfare of individuals with disabilities in Massachusetts. The defendant, as the chief state agency in charge of emergency planning, has refused to provide public records which will prove whether the authorities which are responsible for emergency preparedness, response and recovery have satisfied their obligations to individuals with disabilities in Massachusetts. In denying the plaintiff’s request for public records, the defendant relies on an exemption amended to the State Public Records Law following the catastrophe which enfolded on September 11, 2001. It is a perversion of the mandate for state and local government to protect the lives and well-being of all of its citizens in times of natural and manmade disasters to not ensure that individuals with disabilities are as adequately protected as non-disabled individuals. Similarly, it is a perversion of the policy behind the enactment of exemption (n) to allow the state and local governments to use that statute to prevent individuals with disabilities from overcoming their justifiable insecurity that in the event of an emergency or catastrophe the necessary and accessible services and accommodations for their health and well-being will not be in place.
Parties
1. Plaintiff Disability Policy Consortium, Inc., [DPC] is a charitable organization incorporated under the laws of the Commonwealth of Massachusetts with its principal place of business located at 59 Temple Place, Boston, Suffolk County, Massachusetts.
2. Plaintiff DPC is an organization in Massachusetts whose membership includes volunteer disability rights activists who share a common goal of obtaining equal opportunities for all individuals with disabilities.
3. The mission of the DPC is to foster inclusion, independence, and empowerment by promoting statewide development of policies that ensure that programs and services enable people with disabilities to participate in the political, economic, and social mainstream of the Commonwealth.
4. The defendant is the Custodian of Public Records of the Massachusetts Emergency Management Agency.
5. The Massachusetts Emergency Management Agency is the state agency responsible for coordinating federal, state, local, voluntary and private resources during emergencies and disasters in the Commonwealth of Massachusetts.
6. The offices of the defendant Massachusetts Emergency Management Agency are located at 400 Worcester Road, Framingham, Middlesex County, Massachusetts.
Plaintiff’s Requests for Public Documents, Defendant’s Response, and Action of the Commonwealth’s Supervisor of Records
7. On August 7, 2006, the plaintiff submitted a letter to Cristine McCombs, Director of the defendant, and, among other statements, requested the following records, and information:
a. A list of Emergency Management Directors for each city and town (text format).
b. A list of Regional Planning organizations, coordinators, and meeting schedules.
c. Inventory of Strategic National Stockpile (SNS) durable medical equipment.
d. Distribution plan for moving these materials to points of need in case of an avian flu epidemic.
e. Copies of Emergency Management Assistance Compact (EMAC) agreements and an assessment of their usefulness as they apply to people with disabilities.
f. A list (inventory) of the Commonwealth’s emergency shelters, staging areas, decontamination sites, etc., and an assessment of their physical accessibility and compliance with the ADA.
g. Schedule of COOP drills.
h. Copies of memoranda, directives or other documents sent to local emergency planning agencies and private organizations such as the Red Cross, Salvation Army, faith-based groups, etc., about dealing with “special populations”.
8. By letter dated September 12, 2006, the defendant’s Director purportedly responded to the plaintiff’s letter of August 15, 2006, but did not provide the records and information requested in plaintiff’s letter of August 15, 2006, and did not state that the requested records and information were forthcoming.
9. On October 15, 2006, the plaintiff wrote to the defendant’s legal counsel, and stated that since the plaintiff had not been provided with the information and records it had requested in its August 7, 2006, it was submitting a formal Public Document request for the identical records and information enumerated in the plaintiff’s August 7, 2006 letter to the defendant’s Director.
10. On October 16, 2006, the plaintiff’s Executive Director, William F. Allan, met with representatives of the defendant, Christine Packard, Preparedness Branch Chief, and Mike Philbin, Planning Department Coordinator.
11. At the meeting referred to in the preceding paragraph, the plaintiff was informed that the defendant had copies of the emergency plans from Massachusetts Cities and Towns and, at that time, the plaintiff made a request to the defendant’s representatives that the defendant provide copies of the emergency plans from Massachusetts Cities and Towns.
12. To the request described in the preceding paragraph, the defendant’s representatives refused to provide the requested emergency plans.
13. On October 18, 2006, the plaintiff wrote to the defendant’s legal counsel, and stated that since the defendant had refused to provide the records it requested at the October 16, 2006 meeting, referred to in the preceding paragraph, it was submitting a formal Public Document request for the identical records and information requested from the defendant on October 16, 2006, namely:
the latest copy of the annual filing of emergency management plans from each city and town of the Commonwealth of Massachusetts.
14. When the plaintiff did not receive any response from the defendant to its formal requests for information and records submitted on October 15 and 18, 2006, within ten days of the requests, the plaintiff, on October 31, 2006, filed a written appeal to the Supervisor of Public Records of the Office of the Secretary of the Commonwealth, pursuant to 950 CMR 32:08(2) and M.G.L. c.66, §10.
15. By letter dated November 7, 2006, Christopher Pohl, Deputy General Counsel, Executive Office of Public Safety, responded, on behalf of the defendant, to the plaintiff’s October 15 and 18, 2006, written requests for public records by stating, as follows:
a. to plaintiff’s request for a list of emergency management directors each city and town, that a list of emergency management directors was available online at the defendant’s state website.
b. to plaintiff’s request for a list of Regional Planning organizations, coordinators, and meeting schedules, that a list of regional planning organizations was available online at the state website of the Executive Office of Public Safety.
c. the defendant denied the plaintiff’s request for an Inventory of Strategic National Stockpile (SNS) durable medical equipment, citing M.G.L. c.4, §7 cl.26(n).
d. the defendant denied the plaintiff’s request for the Distribution Plan for moving these materials to points of need in case of an avian flu epidemic, citing M.G.L. c.4, §7 cl.26(n).
e. to the plaintiff’s request for copies of Emergency Management Assistance Compact (EMAC) agreements and an assessment of their usefulness as they apply to people with disabilities, that a copy of a standard Emergency Management Assistance Compact (EMAC) was available online at www.emacweb.org.
f. the defendant denied the plaintiff’s request for a list (inventory) of the Commonwealth’s emergency shelters, staging areas, decontamination sites, etc., and an assessment of their physical accessibility and compliance with the ADA, citing M.G.L. c.4, §7 cl.26(n).
g. the defendant denied the plaintiff’s request for the Schedule of continuity of operation (COOP) drills to be conducted by executive department agencies, citing M.G.L. c.4, §7 cl.26(n).
h. the defendant denied the plaintiff’s request for copies of memoranda, directives or other documents sent to local emergency planning agencies and private organizations such as the Red Cross, Salvation Army, faith-based groups, etc., about dealing with “special populations”, by stating that the request was very broad and that some of the documents would likely be exempt from disclosure in whole or in part under the public records law, citing M.G.L. c.4, §7 cl.26(n). The defendant invited the plaintiff to consider narrowing this specific public records request.
i. the defendant denied the plaintiff’s request for the latest copy of the annual filing of emergency management plans from each city and town of the Commonwealth of Massachusetts, stating that records which relate to emergency preparedness or threat and vulnerability assessments are exempt from disclosure under the public records law, citing M.G.L. c.4, §7 cl.26(n).
16. By letter dated November 15, 2006, Alan N. Cote, Supervisor of Records, informed the plaintiff that he had received the plaintiff’s appeal from the defendant’s response to the plaintiff’s request for public records, that an attorney, a member of the Supervisor of Records’ staff, had been directed to review the appeal, and that upon completion of the review, the Supervisor would advise the plaintiff in writing of the disposition of the appeal.
17. On December 20, 2006, counsel for plaintiff wrote to Matthew M. Valcourt, the attorney assigned to the appeal referred to in the preceding paragraph and asked for Mr. Valcourt’s estimate of when the appeal would be disposed of by his office.
18. By letter dated December 18, 2006, the Supervisor of Records ordered the defendant’s attorney to provide his office with all of the records responsive to the plaintiff’s requests for an in camera inspection and stated that failure to comply with the order within ten days might result in a referral of the matter to the Office of the Attorney General. In his December 18, 2006, letter to counsel for the defendant, the Supervisor of Records acknowledged that in the defendant’s response to the plaintiff’s public records requests the defendant claimed that a number of the requested records were exempt in their entirety pursuant to exemption (n) of the Public Records Law. The Supervisor of Records also explained that due to the sensitive nature of the records and the lack of judicial or legislative guidance with regard to exemption (n) matters, he wanted to inspect the records in camera to verify whether or not any portion might be released after redacting exempt material.
19. As of January 12, 2007, counsel for the plaintiff had not received a response to his letter of December 18, 2006, to the lawyer handling the appeal for the Supervisor of Records, asking for an estimate of when the appeal would be disposed of by the Office of the Supervisor of Records.
20. On January 12, 2007, a representative of the Supervisor of Records informed plaintiff’s attorney that another attorney, Shawn A. Williams, had been assigned to the appeal. On that date counsel for the plaintiff telephoned Mr. Williams and left a message and also wrote to Mr. Williams requesting a description of the status of the appeal, whether the defendant had complied with the December 18, 2006 Order of the Supervisor of Records’ to produce the requested records, and, if so, a description of the status of the Supervisor’s in camera review of those records.
21. On January 19, 2007, Mr. Williams informed plaintiff’s counsel that at the request of the defendant’s attorney, the Supervisor of Records had extended the time for the defendant to produce records pursuant to the Supervisor’s order, that no records had yet been produced, and that Mr. Williams did not know when any records would be produced to the Supervisor. Mr. Williams also agreed to inform plaintiff’s counsel of the progress of obtaining records from the defendant for the Supervisor’s review.
22. On February 2, 2007, counsel for the plaintiff wrote to Mr. Williams and stated that in an effort to facilitate the defendant’s production of requested records to the Supervisor, the plaintiff had agreed to withdraw four of its nine itemized requests for public documents, as follows:
a. Inventory of Strategic National Stockpile (SNS) durable medical equipment;
b. Distribution plan for moving these materials to points of need in case of an avian flu epidemic;
c. Copies of Emergency Management Assistance Compact (EMAC) agreements and an assessment of their usefulness as they apply to people with disabilities; and
d. Schedule of COOP drills.
Plaintiff’s counsel clarified that the remaining public records which the plaintiff sought were:
a. A list of Emergency Management Directors for each city and town (text format);
b. A list of Regional Planning organizations, coordinators, and meeting schedules;
c. A list (inventory) of the Commonwealth’s emergency shelters, staging areas, decontamination sites, etc., and an assessment of their physical accessibility and compliance with the ADA;
d. Copies of memoranda, directives or other documents sent to local emergency planning agencies and private organizations such as the Red Cross, Salvation Army, faith-based groups, etc., about dealing with “special populations” within the last 6 months; and
e. The latest copy of the annual filing of emergency management plans from each city and town of the Commonwealth of Massachusetts.
Plaintiff’s counsel forwarded a copy of his letter of February 2, 2007, to counsel for the defendant. In his February 2, 2007 letter, plaintiff’s counsel also asked Mr. Williams to inform counsel of the status of obtaining records requested by the plaintiff from the defendant for review by the Supervisor of Records.
23. Approximately two weeks before the filing of this Complaint, counsel for the plaintiff telephoned and left a message for Mr. Williams repeating his request to be apprised of the status of the defendant’s production of records requested by the plaintiff for the Supervisor’s review. As of the filing of this Complaint, counsel for the plaintiff has received no communication from the Supervisor of Records or anyone acting on his behalf concerning the receipt of records from the defendant, the status of the Supervisor’s review of records, or the plaintiff’s appeal.
24. As of the filing of this Complaint, the plaintiff has not received any of the records it requested from the defendant in its letters of October 15 and 18, 2006.
Legal Claims
25. There exists an actual controversy between the plaintiff and the defendant as to whether the information requested by the plaintiff constitutes public records subject to mandatory disclosure under M.G.L. c. 66, §10, or whether the records are exempt from mandatory disclosure under exemption (n).
26. By refusing to provide access to or copies of the information requested by the plaintiff, the defendant has violated M.G.L. c. 66, §10(a) & (b).
Prayer for Relief
WHEREFORE, the plaintiff respectfully requests this Honorable Court to:
1. Enter a Declaratory Judgment for the plaintiff that as a matter of law the defendant is obligated to provide the plaintiff with access to and copies of the information requested by the plaintiff in its written document requests dated October 15, 2006 and October 18, 2006;
2. Enter a Declaratory Judgment for the plaintiff that the defendant has not met its burden of proving with specificity that exemption (n) applies to the information requested by the plaintiff;
3. Enter preliminary and permanent injunctions directing the defendant to provide the plaintiff with access to and copies of the information requested by the plaintiff in its written document requests dated October 15, 2006, and October 18, 2006, as follows:
a. A list of Emergency Management Directors for each city and town (text format).
b. A list of Regional Planning organizations, coordinators, and meeting schedules.
c. Inventory of Strategic National Stockpile (SNS) durable medical equipment.
d. Distribution plan for moving these materials to points of need in case of an avian flu epidemic.
e. Copies of Emergency Management Assistance Compact (EMAC) agreements and an assessment of their usefulness as they apply to people with disabilities.
f. A list (inventory) of the Commonwealth’s emergency shelters, staging areas, decontamination sites, etc., and an assessment of their physical accessibility and compliance with the ADA.
g. Schedule of COOP drills.
h. Copies of memoranda, directives or other documents sent to local emergency planning agencies and private organizations such as the Red Cross, Salvation Army, faith-based groups, etc., about dealing with “special populations”.
i. The latest copy of the annual filing of emergency management plans from each city and town of the Commonwealth of Massachusetts; and
4. Such other relief as the Court deems appropriate.
Respectfully submitted,
Disability Policy Consortium, Plaintiff
By its Attorney,
Edward Berkin
92 State Street, 6th Floor
Boston, Massachusetts 02109-2027
(617) 248-2340
BBO No. 039480
DATED: April 6, 2007