Michael Langan, M.D. v. Board of Registration in Medicine (SPR 20180580)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords May 11,2018 SPRlS/580 Gerard F. Dolan, Esq. Assistant General Counsel Board of Registration in Medicine 200 Harvard Mill Sq. Suite 330 Wakefield, MA 01880 Dear Attorney Dolan: I have received the petition from Dr. Michael Langan appealing the nonresponse 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, Dr. Langan made a public records request to the Board on March 26, 2018 asking for documents "referred to in paragraphs #1 0 and #12 of the February 6, 2013 Board Order." The Board delivered a response to Dr. Langan on April6, 2018 explaining that they have provided him with all the records in their possession. Dr. Langan appealed the Board's response on April27, 2018 requesting "2 specific documents" comprising of a total of 4 pages. Public Records Law Under the Public Records Law and the Access Regulations (Regulations) all requests for public records must be met with a response within ten business days of receipt of the request. G. L. c. 66, § lO(a)-(b). The response may contain, among other things, an offer to provide records, a fee estimate for provision ofthe records, or a denial. G. L. c. 66, § lO(b). All records custodians must comply with both the Public Records Law and the Regulations with respect to the timeliness of response. The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control ofthe custodian of records at the time of the request. See G. L. c. 66, § 1 O(a)(ii), (b)(ii). Also, the duty to comply with requests for records extends to identifying the agency or municipality that may be in possession, custody, or control ofthe public record sought, if known. See G. L. c. 66, § 1O (b) (iii). When withholding requested records, a records custodian is required to provide a response that identifies "any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based." G. L. c. 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 F. Dolan, Esq. SPR18/580 Page 2 May 11,2018 66, § 1O (b )(iv). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. See G. L. c. 66, § 10(a); Reinstein v. Police Comm'r ofBoston, 378 Mass. 281,289- 90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Appeal The Board provided Dr. Langan with a follow-up response on May 1, 2018. The Board provided additional information concerning records already provided to Dr. Langan, the Board's duty to interpret records, and lack of jurisdiction. The Board stated that there are "no further records to provide and the Board can now only send you additional copies of the same set of records" to Dr. Langan. The Boards' search shows that there are currently no records in the Boards's possession that haven't already been given to Dr. Langan. See G. L. c. 66, § 1O (b )(ii), (b )(iii). Dr. Langan in his appeal references the lack of corresponding index identifying the records provided. The Board denies that there is no index pointing to "pages 2-5 of the cover letter to the August 25, 2017, production contain an exhaustive index of the included records. This index identifies each record provided and the corresponding 'tab' number or letter." A Records Access Officer shall not be required to create a new public record in order to comply with a request, provided that furnishing a segregable portion of a public record shall not be deemed to be creation of a new record. See G. L. c. 66, § 6A( d). It appears Dr. Langan's records request is related to the release of an adjudicatory session which raises issues that potentially invoke the Open Meeting Law. Given that an interpretation of the Open Meeting Law falls within the authority of the Office of the Attorney General (AGO), it is recommended that you contact the AGO should you seek a determination on this issue. See G. L. c. 30A, § 23. Further, in light of the Board's April 6th and May 1t h responses to Dr. Langan confirming there are no more responsive records in the Boards' possession and the Board has no duty to create records, I find the Board has met its burden in responding to this request. See G. L. c. 66, §§ 6A(d); 10(b)(ii), (iii). Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Dr. Michael Langan