H. Brady v. Department of Public Health-Division of Health Professions Licensure (SPR 20160525)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords August 5, 2016 SPR16/525 Ms. Charlena Christiansen Program Analyst The Office of Public Protection Division of Health Professions Licensure Massachusetts Department of Public Health 239 Causeway Street, Suite 500 Boston, MA 02114 Dear Ms. Christiansen: I have received the petition of H. Brady appealing the response of the Board of Registration in Nursing (Board) to a request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, H. Brady requested profile information for a specifically identified registered nurse. You provided responsive information, including name, license number, and license issue and expiration date. H. Brady appealed. Obligation to requester in petitions It has come to my attention that an email from the Board citing a specific statute in support of its response to a request for public records was not provided by H. Brady with the petition of appeal. H. Brady is reminded that appeals must be accompanied by a response when available. See 950 C.M.R. 32.08(2). A requester risks having an appeal denied for failure to provide all responses related to that appeal. The Public Records Law 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). Under the Public Records Law and the Access Regulations (Regulations) all requests for public records must be met with a response within ten (10) days of the request. G. L. c. 66, § OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Ms. Charlena Christiansen SPR16/525 Page 2 August 5, 2016 10(b); 950 C.M.R. 32.05. The response may be an offer to provide records, a fee estimate for provision of the records, or a denial. 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). 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. 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 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 further information. Present appeal Subsequent to the opening of this appeal both a member of my staff and I spoke with you regarding the obligation of records custodians to respond to requests for public records. In an August 5, 2016 telephone conversation, Board Counsel Beth A. Oldmixon clarified the Board's response, explaining that in a June 24 response you cited statute to support the lack of additional responsive information. This response, not previously made available to my office, was provided by you at my request. I wish to thank you and Board Counsel Oldmixon for your cooperation in this appeal. The statute cited in the June 24 states, in pertinent part: The home address and telephone number or place of employment or education of victims of adjudicated crimes, of victims of domestic violence and of persons providing or training in family planning services and the name and home address and telephone number, or place of employment or education of a family member of any of the foregoing shall not be public records in the custody of a government agency which maintains records identifying such persons as falling within such categories and shall not be disclosed. G. L. c. 66, § 10(d)

Ms. Charlena Christiansen SPR16/525 Page 3 August 5, 2016 In our telephone conversation Board Counsel Oldmixon explained that the above section applies to the responsive record and permits redaction of the portions that are the subject of this appeal. Upon review of the section, I agree with Board Counsel Oldmixon. Conclusion While the section above does apply to permit withholding portions of the responsive record, I find the Board failed to meet its burden of explaining, with specificity, the applicability of the relevant portion of the cited section to the portion of the records that was withheld. Accordingly, the Board is hereby ordered to review the request by H. Brady and provide a revised written response, prepared in a manner consistent with this order, the Public Records Law and its Regulations. A copy of any such response must be provided to this office. It is preferable to send an electronic copy ofthis response to this office at re sec.state.ma.us. Supervisor of Records cc: H. Brady