Valerie A. Yarashus v. Executive Office of Health and Human Services - Board of Registration in Medicine (SPR 20160788)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords October 18, 2016 SPR16/788 Ms. Katie M. Condon Board of Registration in Medicine 200 Harvard Mill Square, Suite 330 Wakefield, MA 01880 Dear Ms. Condon: I have received the petition of Valerie A. Yarashus, Esq. of Meehan, Boyle, Black & Bogdanow, P.C. appealing the response of the Board of Registration (Board) to a request for public records. G. L. c. 66 § lO(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 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. Basis of this appeal This request was the subject of a previous appeal. See SPRl 6/021 Determination of the Supervisor of Records (February 12, 2016). In my determination, I ordered the Board to provide Attorney Yarashus with a response to each of her itemized requests and if withholding records, to provide Attorney Y arashus with a written response not only specifying what exemption applies, but also specifically why that particular exemption applies to each withheld record or redacted portion of the record. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Ms. Katie M. Condon SPR16/788 Page2 October 18, 2016 In a February 25, 2016 response to my February 12, 2016 determination, you informed Attorney Yarashus that in response to her requests 1, 2, 4 and 5, the Board is in possession of closed claim reports and payments made by the insurance company (CMCI) regarding the physicians named in her requests. The Board is withholding these closed reports and payment records pursuant to G. L. c. 112, § 5 as it operates through Exemption (a), as confidential information. Attorney Y arashus appealed. 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, § IO(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). 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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § IO( 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 fees are paid, a records custodian 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 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. Exemption (a) In your February 25, 2016 letter, you state that all the requested records have been withheld pursuant to Exemption (a) of the Public Records Law. Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute

Ms. Katie M. Condon SPR16/788 Page 3 October 18, 2016 G. L. c. 4, § 7 (26)(a) A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public's right to inspect records under the Public Records Law is restricted. See Attorney General v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This office cannot order disclosure of records if a statute mandates nondisclosure. General Chemical Corp. v. Department of Environmental Quality Engineering, 19 Mass. App. Ct. 287 (Mass. App. Ct. 1985). The Board states that the statute applies to all of Attorney Yarashus's requests, except the records provided in response to her request Number 3. The Board states that "closed claim reports" are filed with and compiled by the Board's data repository unit, and that the reports are confidential. However, the Board has failed to detail whether the particular records requests, such as correspondence, notes or other records responsive to Attorney Yarashus's requests are contained in the "claim reports." I find that the Board has still failed to meet its statutory and regulatory obligation of explaining what records requested by Attorney Y arashus are exempt by . the statute cited by the Board. Order I find the Board has still failed to thoroughly respond to a request for public records. Accordingly, the Board is hereby ordered to provide Attorney Y arashus with a more detailed response to each of the separate itemized requests 1, 2, 4 and 5, 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 c py of this response to this office at pre@sec.state.ma.us. cc: Ms. Valerie A. Yarashus, Esq.