Andrew L. Hyams v. Board of Registration in Medicine (SPR 20180056)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebccca S Murray SU~WN'SOofYR Ccords January 30,201 8 SPR181056 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, 5 10A; -also 9 50 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 contenlporaneous notes" for an October 26,2017 meeting. Previous appeal This request was the subject of a previous appeal. SPR1711697 Determination of the Supervisor of Records (December 26,2017). I closed SPR1711697 by ordering the Board to provide Attorney Hyams with a response to the request, provided in a manner consistent with the order, the Public Records Law and its Regulations. The Department responded on January 11,2018. Attorney Hyams appealed and SPR181056 was opened as a result. Purpose of request Based on the request and responses, it appears Attorney Hyams is seeking records related to his clients. Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requester. & Boueas v. Chief of Police of Lexington, 371 Mass. 59,64 (1976). Accordingly, Attorney Hyams' purpose in making the request has no bearing on the public status of any existing responsive records. 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. Page 2 January 30,201 8 It should be noted that the discovery process and the Public Records Law are two distinct and independent avenues for gaining access to records. The Massachusetts Supreme Judicial Court has held that while a party's access to records may be limited by the Public Records Law, this may not preclude obtaining the records through discovery. Commonwealth v. Wanis, 426 Mass. 639 (1998). See also 950 C.M.R. 32.08(1)(a) (the administrative appeal process "shall not apply to records in which an individual, or a representative of the individual, has a unique right of access to the record through statutory, regulatory, judicial or other applicable means"). As such, Attorney Hyams may wish to consider another means of seeking to obtain any existing responsive records. It should also be noted that the Board explains in its January 1l thr esponse that "certain records of the executive and adjudicatory sessions, such as the minutes, are available to you and your clients under the Fair Information Practices Act ('FIPA'), G.L. c. 66A, 5 2(i), because they consist of personal data regarding your clients." You also note "you have already received the records of these meetings to which you are entitled under both the Public Records Law and FIPA." Open Meeting Law In its December 1,2017 response, the Board noted it previously provided minutes of Dr. Little's October 26,2017 adjudicatory session. However, the Board indicated it is withholding Jennifer Sadowski's notes pursuant to Exemptions (a), (b), and (e) of the Public Records Law. G. L. c. 4, 5 7(26)(a)-(b), (e); G. L. c. 30A, 5 22(f). In my December 26Lh determination I found "[tlhe Board must clarify whether it is invoking provisions of the Open Meeting Law to withhold responsive records." In its January 11" response the Board asserts the following with respect to its claim under the Open Meeting Law: To clarify, the Board does not claim that disclosure of the records to you or your clients would defeat the lawful purposes of the executive sessions. Rather, disclosure of these records to the public would defeat these purposes because the executive sessions were held pursuant to G.L. c. 30A, 3 21(a)(l), to discuss the reputation, character, physical condition, and/or mental health of your clients. (emphasis added). You also note that "[alt this time, these purposes have not expired and therefore the records of the executive sessions are specifically exempt from public disclosure by statute." Please note that G. L. c. 30A, 5 22(f) provides in pertinent part: The minutes of any executive session, the notes, recordings or other materials used in the preparation of such minutes and all documents and exhibits used at the session, may be withheld from disclosure to the public in their entirety under subclause (a) of clause Twenty-sixth of section 7 of chapter 4, as long as

Gerard Dolan, Esq. Page 3 January 3 0,20 18 publication may defeat the lawful purposes of the executive session, but no longer; provided, however, that the executive session was held in compliance with section 21. Please be advised that the interpretation of the Open Meeting Law falls within the authority of the Office of the Attorney General (AGO) and not this office. See G. L. c. 30A, 5 23. Whereas the Board is withholding notes used to prepare minutes and is asserting that the purposes of the executive sessions have not expired, I decline to opine on this matter. It is recommended that the parties contact the AGO for a determination as to the status of these records. In his appeal petition, Attorney Hyams asserts "[plending fmal resolution however I think it is essential that the Supervisor order the BORIM to stop destruction of Public Records." Please note the Massachusetts Statewide Records Retention Schedule, (2017 Edition), applies to state government entities, such as the Board. Sincerely, Rebecca S. Murray Supervisor of Records cc: Andrew L. Hyams, Esq.