Valerie A. Yarashus v. Executive Office of Health and Human Services - Board of Registration in Medicine (SPR 20160021)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords February 12, 2016 SPR16/021 Ms. Katie M. Condon Board of Registration in Medicine Legal Division 200 Harvard Mill Square, Suite 330 Wakefield, MA 01880 Dear Ms. Condon: I have received the petition of Valerie A. Y arashus, Esq. of Meehan, Boyle, Black & Bogdanow, P.C. appealing the response of the Board of Registration in Medicine (Board) to a request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Attorney Y arashus requested a copy of: 1. Any documents which relate to the 2014 settlement in Brazil vs. Jennifer Ladner, M.D., John C. Hostetter, M.D. and Cardiovascular Specialists, LLC, (Suffolk Superior Court, No. SUVC2014-02637-F), 2. Any documents in the possession, custody or control of the Board that relate in any way to the "Malpractice Information" section of the online Physician Information from 2012 to date for above physicians, 3. Any correspondence, notes, reports, or documents from 2012 to date regarding the above physicians, 4. Any correspondence or forms specifically from the insurance company CMCI from 2012 to date regarding the above physicians, and 5. Any correspondence, notes, reports or documents from 2012 to date regarding any judgments, arbitration awards or settlements regarding the above physicians. Board failed to timely respond The Board failed to respond to Attorney Y arashus in a timely manner. Your response was provided on December 29,2015, fifty-five (55) days after the November 4 request. Under the Public Records Law and the Access Regulations (Regulations) all requests for public records must be met with a response within ten (1 0) days of the request. G. L. c. 66, § 1O (b ); 950 C.M.R. 32.05. The ten-day provision is a maximum, rather than a minimum time frame for OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832. Fax (617) 727-5914 www.sec.state.ma. us/ pre

Ms. Katie M. Condon SPR16/021 Page 2 February 12, 2016 complying with a public records request. Boston Globe Newspaper Company v. Commissioner ofEducation, 439 Mass. 124 (2003). The response may be an offer to provide records, a fee estimate for provision of the records, or a denial. The ten (1 0) days is a maximum, not a minimum. The Board is advised that all records custodians must comply with both the Public Records Law and the Regulations with respect to the timeliness of response. The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10(c); 950 C.M.R. 32.08(4). "Public records" is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any town of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10 ( c); see also District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). Failure to properly respond After providing the Board with a copy of the appeal file, an attorney on my staff explained to you in a February 1 telephone discussion that the Board had failed in its December 29, 2015 letter to specifically answer each ofthe itemized requests, explain what information had been redacted from the records and how Exemption (c) applies to do so. Later in the day on February 1, you provided a second response that still fails to answer each of the itemized requests, and merely states that Exemption (a), a particular General Law and some Regulations allow the Board to withhold the requested records. Moreover, instead of informing Attorney Yarashus what records it has in its custody and either offering to provide or specifically withholding under the exemptions in the Public Records Law, the Board uses the "Glomarization Principal." Glomarization" is defined as the practice by which a public agency neither confirms nor denies the existence of an investigation as such acknowledgment would hinder intelligence operations. Bassiouni v. CIA, 392 F.3d 244, 246 (1st Cir.2004); Antonelli v. Federal Bureau oflnvestigation, 721 F.2d 615, 618 (1983). See generally, Phillippi v. CIA, 546 F.2d 1009 (D.C. Cir.l976). I find the Board has failed to properly respond to a request for public records. Accordingly, the Board is hereby ordered, within ten (1 0) days of this order, to provide Attorney Y arashus with a response to each of her itemized requests, provided in a manner consistent with this order, the Public Records Law and its Regulations. If the Board maintains that any portion

Ms. Katie M. Condon SPR16/021 Page 3 February 12, 2016 of the responsive records are exempt from disclosure it must, within ten (1 0) days provide to Attorney Y arashus a written explanation, with specificity, how a particular exemption applies to each record or each portion of a record. To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec. state.ma. us. If there are any fees associated with this response a written, good faith estimate must be provided. G. L. c. 66, § 1O (a); see also 950 C.M.R. 32.06(2) (where cost of complying with a request for public records is expected to exceed ten dollars ($1 0. 00), custodian of records shall provide written good faith estimate). Once the fees are paid, you must provide the responsive records. To assist the Board in responding to requests for public records I have enclosed a copy of our publication, A Guide to the Massachusetts Public Records Law. This document is also available on the Internet, free of charge, at http://www.sec.state.ma.us/pre/prepdf/guide.pdf. Attorneys on my staff are available during regular business hours to answer general questions regarding the Public Records Law. In addition, members of my staff will visit a records custodian in person to conduct training workshops on the Public Records Law upon request. Please contact my office directly at the telephone number provided in this determination for furthe information. Enclosure cc: Ms. Valerie A. Yarashus, Esq.