Colman Herman v. Massachusetts Board of Registration in Medicine (SPR 20160902)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords October 28, 2016 SPR16/902 George Zachos Executive Director Board of Registration in Medicine 200 Harvard Mill Square, Suite 300 Wakefield, MA 01880 Dear Mr. Zachos: I have received the petition of Colman M. Herman appealing the response ofthe 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. Herman requested copies of certain email records. This request is the subject of a previous appeal. See SPR16/293 Determination of the Supervisor of Records (May 4, 2016); See SPR16/734 Determination of the Supervisor of Records (September 27). In my September 27 determination I ordered the Board to provide Mr. Herman with a response to the request prepared in a manner consistent with this order, the Public Records Law and its Access Regulations (Regulations). The Board responded to this request with a letter dated October 11, 2016 in which it explained its common law attorney-client privilege claim and provided a privilege index. Mr. Herman informed this office he seeks further action with respect to this matter and this appeal (SPR16/902) was opened as a result. Privilege index In the Board's October 11 response you indicate "[t]he Board wishes to reiterate that the Suffolk Construction case made it absolutely clear that confidential communications between public officers and governmental employees and their legal counsel undertaken for the purpose of obtaining legal advice are protected by the attorney-client privilege." (emphasis in original). You cite Suffolk Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444 (2007) to support the attorney-client privilege claim. You also provided a privilege index for five (5) withheld emails that includes information pertaining to the date of the emails, the sender and recipient, nature of the email, basis for withholding, and legal authority. One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre • pre@sec.state.ma.us

George Zachos SPR16/902 Page 2 October 28, 2016 Attorney Client privilege In his October 12, 2016 appeal petition Mr. Herman expresses concern that not all elements of the common law attorney client privilege were satisfied in the Board's response. Emails dated March 4, 2015 and April 28, 2015 In his appeal petition Mr. Herman indicates with respect to emails dated March 4, 2015 and April28, 2015, "[i]t is unclear what these emails represent. Are these emails that were withheld in their entirety?" Redacted emails In the Board's September 14 response you indicate the Board provided two (2) documents "comprised of a series of emails, portions of which have been redacted, as the redacted portions are attorney-client communications regarding legal advice, are privileged, and thus, not subject to disclosure." In his appeal petition Mr. Herman indicates he has not received an index for these redacted portions. Blank documents In his appeal petition, Mr. Herman explains the Board provided "blank pages in its production." He indicates "[i]fthese are emails, I am at least entitled to the portion ofthe emails stating who sent the emails, who received the emails, and the subject of the emails." Duplicates The Board explains "the [t]he two responsive documents attached to the September 14 letter, although the same substantively, are two separate emails." In his appeal petition Mr. Herman indicates "why were two documents with the same exact content provided?" Conclusion It appears as ifthere are outstanding issues regarding the Board's production of documents. I understand an attorney on my staff contacted you about this appeal and provided a copy of Mr. Herman's appeal petition. I find a further written clarification by the Board would address Mr. Herman's queries. Accordingly, I will consider this appeal closed with the proviso that the Board provide Mr. Herman with a clarified response to the request within ten (1 0) days, prepared in a manner consistent with this order, the Public Records Law and its Regulations. This response must address the issues outline above and in Mr. He man's appeal petition. A copy of any such response must be provided to this office. It is _g ferable to send an electronic copy of this response to this office at ""'r"-'e~.=...::..:==-==~ cc: Mr. Colman M. Herman