Todd Wallack v. Massachusetts Board of Registration in Medicine (SPR 20160672)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords September 16, 2016 SPR16/672 Mr. Robert E. Harvey, Esq. Board Counsel Board of Registration of Medicine 200 Harvard Mill Square, Suite 330 Wakefield, MA 01880 Dear Attorney 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. Previous appeals and determinations This request was the subject of previous appeals. See SPR16/159 Determination ofthe Supervisor ofRecords (March 11, 2016); SPR16/214 Determination ofthe Supervisor of Records (April 8, 2016); SPR16/341 Determination ofthe Supervisor of Records (June 16, 2016). In my June 16 determination, I found the Board failed to meet its burden to justify its fee estimate for the provision of records. I closed the appeal with the proviso that the Board provide Mr. Wallack a supplemental response to the request and the Board did so in a letter dated July 28, 2016. Mr. Wallack appealed the Board's response and this appeal (SPR16/672) was opened as a result. 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). OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Mr. Robert E. Harvey, Esq. SPR16/672 Page2 September 16, 2016 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. July 28 response In its July 28 response to Mr. Wallack the Board explains the Physician Profile database, referred to elsewhere in its response as "DB" or "Profiles DB," contains more information than just the information that is publically available. Further you indicate "[t]he Physician Profiles website ('website') draws from the Profiles DB, but segregates out any information, such as the information discussed immediately above, and only places on a physician's Profile that information which is required and public." You explain this process is done "with a computer program that was specifically designed to fulfill the Board's mandate to have a Physician's Profiles program" and "[i]t is for this purpose, and only for this purpose, that the program exists." You claim "[i]n order to produce the data on the Profiles DB in response to your request, a new computer program would need to be designed to download this information to a spreadsheet in readable format." With respect to the hourly rate of the $98.00 to perform the task of providing responsive records, the Board explains "the Profiles DB and the computer program that it draws from were specifically designed for the Board by an outside consultant. No internal Board employee is intimately knowledgeable about the program to perform the task. The $98.00 per hour is the lowest rate." In addition, the Board offers "to create a program to generate a new version of the Standard Release file from the DB" at a "lower cost" described in its April29, 2016 letter to Mr. Wallack, or "provide the previously offered printouts of all the Profiles." Mr. Wallack's appeal petition In his appeal petition, Mr. Wallack indicates he does not disagree with the "suggestion that some information in the database needs to be segregated." However, he indicates his belief that this can be done "with two SQL select queries that retrieve only the public fields (or columns) in the database." He also explains he is willing to work with the Board to facilitate this approach. Conclusion Based on the Board's July 28 response, it remains unclear why the Board requires the amount of hours described in its previous fee estimate to segregate the responsive records. See

Mr. Robert E. Harvey, Esq. SPR16/672 Page 3 September 16, 2016 950 C.M.R. 32.03 (defining segregation time as the time used to redact data that is exempt from non-exempt material); G. L. c. 66, § 10(a) (the search and segregation fees must reflect the actual cost of complying with a particular request). Although the July 28 response provides more detail regarding the nature of the relevant database, it does not sufficiently address why the Board must design a new program, requiring hundreds of hours to complete, instead of use the method described by Mr. Wallack. The Board is strongly encouraged to discuss this matter with Mr. Wallack. See 950 C.M.R. 32.05(4) (a custodian is expected to use his superior knowledge of the records in his custody to assist the requester in obtaining the desired information). I understand an attorney on my staff discussed this matter with you. Accordingly, I will consider this appeal closed with the proviso that the Board provides a response to Mr. Wallack without delay consistent with the Public Records Law, its Regulations and this order. This response must explain why writing a new program, instead of using a SQL select query, to comply with the request is necessary. cc: Mr. Todd Wallack Mr. George Zachos