Andrew L. Hyams v. Board of Registration in Medicine (SPR 20171697)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 26, 201 7 SPR17/1697 Gerard F. Dolan, Esq. Assistant General Counsel Board of Registration in Medicine 200 Harvard Mill Square, Suite 330 Wakefield, MA 01880 Dear Attorney Dolan: I have received the petition of Andrew L. Hyams, Esq. appealing the response of the Board of Registration in Medicine (Board) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Attorney Hyams requested "Jennifer Sadowski's contemporaneous notes used to prepare the Board October 12, 2017 Board minutes for public sessions, my client Dr. Sulemanji's executive session, and my client Dr. Little's adjudicatory session." Attorney Hyams also sought "the minutes for my client Dr. Little's adjudicatory session, and Jennifer Sadowski's contemporaneous notes" for an October 26, 2017 meeting. In a response dated December 1, 2017, the Board notes it previously provided minutes of Dr. Little's October 26, 2017 adjudicatory session. However, the Board indicates it is withholding Jennifer Sadowski's notes pursuant to Exemptions (a), (b), and (e) of the Public Records Law. G. L. c. 4, § 7(26)(a)-(b), (e); G. L. c. 30A, § 22(f). 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, § lOA(d); 950 C.M.R. 32.03(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, § 1O (b )(iv); 950 C.M.R. 32.06(3); see also Dist. 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. 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

Gerard Dolan, Esq. SPRI 7/1697 Page 2 December 26, 201 7 Open Meeting Law In its December 1st response the Board explains "[t]he executive sessions at issue were called according to G. L. c. 30A, § 2l(a)(l), '[t]o discuss the reputation, character, physical condition or mental health' of your clients. Because these executive sessions were called to protect the privacy rights of your clients, the purpose for which they were held has not expired." You further note "[h]owever, because it is your client requesting the notes of this executive session, the Board may withhold them if they are subject to the attorney-client privilege or any of the exemptions under G. L. c. 4, § 7(26). The Board therefore withholds these notes pursuant to G. L. c. 4, § 7(26)(b) and (e)." The Board also asserts that "[p ]lease note that Board adjudicatory sessions are not subject to the Open Meeting Law because they constitute 'meeting[s] of a quasi-judicial board or commission held for the sole purpose of making a decision required in an adjudicatory proceeding brought before it[.]' G. L. c. 30A, § 18." You further note that "[t]herefore, under the Public Records Law, records related to adjudicatory sessions are also 'specifically or by necessary implication exempted from disclosure by statute[.]' G. L. c. 4, §7(26)(a)." Based on the Board's December 1st response, it is unclear if it is claiming that disclosure of the records may defeat the lawful purposes of the executive sessions, thereby invoking the Open Meeting Law. Please be advised that the interpretation of the Open Meeting Law falls within the authority of the Office of the Attorney General and not this office. See G. L. c. 30A, § 23. The Board must clarify whether it is invoking provisions of the Open Meeting Law to withhold responsive records. Public Records Law exemptions Despite the Board's references to the Open Meeting Law, an analysis of Exemptions (b) and (e ) is appropriate since the Board cites them to support its position to withhold records. Exemption (b) Exemption (b) permits the withholding of: records that are related solely to internal personnel rules and practices of the government unit, provided however, that such records shall be withheld only to the extent that proper performance of necessary government functions requires such withholding G. L. c. 4, § 7 (26)(b). There are no authoritative Massachusetts decisions interpreting Exemption (b ). The general purpose of the cognate federal exemption, however, is to relieve agencies of the burden of assembling and maintaining for public inspection matters in which the public cannot reasonably be expected to have a legitimate interest.

Gerard Dolan, Esq. SPRl 7/1697 Page 3 December 26, 201 7 For Exemption (b) to apply in Massachusetts, a records custodian must demonstrate not only that the records relate solely to the internal personnel practices of the government entity, but also that proper performance of necessary government functions will be inhibited by disclosure. The Board asserts that "[t]he notes taken by Ms. Sadowski in order to prepare the Board minutes are related solely to internal practices of the Board and the proper performance of necessary governmental functions requires that they be withheld. These notes are intended only to assist Ms. Sadowski in her duties related to drafting the Board minutes; they are not intended to be independent records of Board proceedings." You further provide that "[d]isclosure of these notes would subject a Board employee's personal recollection of events to examination, questioning, or comparison to the official Board minutes. This would impede the Board's ability to hold meetings and create adequate minutes. Therefore, the Board's withholding of these notes is necessary for the proper performance of governmental functions." However, the Board has not met its burden to establish how responsive notes, which are used to assist in drafting minutes, "are related solely to internal personnel rules and practices of the government unit" and that "proper performance of necessary government functions requires such withholding" as required by Exemption (b). Exemption (e) Exemption (e) applies to: notebooks and other materials prepared by an employee of the commonwealth which are personal to him and not maintained as part of the files of the governmental unit G. L. c. 4, § 7 (26)(e). The exemption may not be applied by custodians of records to withhold materials intended for communication or preservation. Records are protected from mandatory disclosure by Exemption ( e) only if they meet the two criteria of the exemption. The first criterion of Exemption ( e) limits its application to work-related records that can be characterized as "personal" to the employee, such as personal reflections on work-related activities and notes created by an employee to assist him/her in preparing reports for other employees or for the files of the governmental entity. Notes that have been shared by the employee may not be considered to be "personal" pursuant to Exemption (e ). The second criterion of Exemption ( e) requires that the notes not be kept in a government file. Under the exemption, "files of the governmental unit" excludes working files that are transitory in nature. Such files lack the permanent nature of a government file. Therefore, the retention of materials in such a working file would not bar the application of Exemption (e ) and

Gerard Dolan, Esq. SPRl 7/1697 Page4 December 26, 2017 the records custodian may withhold from disclosure any personal notes that were not shared with others and were not part of such a governmental file. The Board asserts that "Ms. Sadowski's notes of the Board meetings are personal to her and are not maintained as part of the Board's files. These notes are written in personal shorthand and are used solely by Ms. Sadowski to assist in her duties related to drafting the Board minutes. Ms. Sadowski does not share these notes with members of the Board, other employees, or the public." However, the Board has not met its burden to show how all responsive records are personal to the employee and "not maintained as part of the files of the governmental unit" as required by Exemption (e). See G. L. c. 30A, § 22(c), (e)-(f). I understand a Public Records Division staff attorney contacted your office about this matter. Conclusion Accordingly, the Board is ordered to provide Attorney Hyams with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten business days. 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. Sincerely, ~~- Rebecca S. Murray Supervisor of Records cc: Andrew L. Hyams, Esq.