Todd Wallack v. Executive Office of Health and Human Services - Board of Registration in Medicine (SPR 20160159)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords March 11, 2016 SPR16/159 Mr. Robert E. Harvey Division of Law & Policy Board of Registration of Medicine 200 Harvard Mill Square Wakefield, MA 01880 Dear Mr. Harvey: I have received the petition of Todd Wallack of the Boston Globe appealing the response of the Board of Registration of Medicine (Board) to a request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Mr. Wallack requested a copy of"the Board's electronic database of physicians in Massachusetts (including disciplinary information)". Mr. Wallack requested the records be provided via email, CD-ROM or alternate method. In a response dated February 22, 2016 you denied providing a copy of the Profiles Database electronic form because it contains disciplinary information of Massachusetts Physicians. The Board's position is that the Profiles Database can only be provided in the form of printed copies. In this response you estimate the Profiles Database to be approximately 100,000 pages, for which Mr. Wallack would be charged a fee of$.10 per page. 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). Mr. Wallack requested that the records responsive to this request be provided in their native electronic format. Claiming no exemption to the Public Records Law the Board denied this portion of Mr. Wallack's request. The duty of a custodian of records to comply with requests for information extends only to records that exist and are in the custodian's custody. G. L. c. 4, § 7(26) (defining "public records" as those non-exempt materials made or received by a public employee); see also 950 C.M.R. 32.03 (defining "custodian" as the public employee with OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Mr. Robert E. Harvey SPR16/159 Page 2 March 11, 2016 routine access to or control of public records). Where the native form of the records requested is electronic the Board must respond to a request that the records be provided in that form. The Board has claimed no exemption to assist it in denying records in their native form. Other states have recognized the fact that electronic records must be disclosed in native form in response to a request for public records. See Lake v. City of Phoenix, 107 Fair Empl. Prac. Cas. (BNA) 1142 (2009) (if a public entity maintains a public record in an electronic format, then the electronic version, including any embedded metadata, is subject to disclosure). Accordingly, I find that the Board must provide records in native form when so requested unless an exemption permits or requires non-disclosure. The Board is hereby ordered, within ten (10) days of this order, to provide Mr. Wallack with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations. If the Board maintains that any portion of the responsive records are exempt from disclosure it must, within ten (1 0) days provide to Mr. Wallack a written explanation, with specificity, how a particular exemption applies to each 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, § 10(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 ($10.00), custodian of records shall provide written good faith estimate). Once the fees are paid, you must provide the responsive records. To assist in requesting and responding to requests for public records please refer to our publication, A Guide to the Massachusetts Public Records Law. This document is available on the Internet, free of charge, at htt ://www.sec.state.ma.us/ rei re df/ uide. df. Attorneys on my staff are available during regular business hours to answer genera questions regarding the Public Records Law. In addition, members of my staff will visit a recor s custodian in person to conduct training workshops on the Public Records Law upon req est. Please contact my office directly at the telephone number provided in this det illJ:n tion £ r further information. illiams cc: Mr. Todd Wallack