Robert R. Hamel v. Board of Registration in Medicine (SPR 20190182)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords February 11, 2019 SPR19/182; SPR19/183; SPR19/184 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 Robert R. Hamel, Jr., Esq. of Hamel Marcin Dunn Reardon & Shea, P. C. appealing the response of the Massachusetts Board of Registration in Medicine (Board) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Attorney Hamel requested a copy of Board investigation files for three identified clients. Attorney Hamel also requests, "[i]f it is the Board's position that the investigative file is exempt under any provision in the [P]ublic [R]ecord [L]aw, notwithstanding G. L. c. 112, § 5 ... please consider this a request for any memorandum, policy or other document discussing or justifying the Board's position." The Board responded to the requests on January 15, 2019 by denying access to the records, in their entirety, under Exemption (a) of the Public Records Law. G. L. c. 4, § 7(26)(a); G. L. c. 112, § 5; 243 C.M.R. l .02(8)(b) , ( c )(2). As a result, Attorney Hamel petitioned the Supervisor of Records (Supervisor) and appeals SPR19/182, SPR19/183 and SPR19/184 were opened. Purpose for the request 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 requested pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requester. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Attorney Hamel's purpose in making the requests 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 F. Dolan, Esq. SPR19/182; 19/183; 19/184 Page 2 February 11, 2019 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, § lO(b)(iv) (written response must "identify 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 ... "); 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). The Board's January 15, 2019 responses The Board provided January 15th responses to all three of Attorney Hamel's requests for investigation files indicating the records are not public and may be withheld under G. L. c. 112, § 5; 243 C.M.R. l.02(8)(b) and l.02(c)(2), as they operate through Exemption (a). The Board also claims that the investigation files may be withheld under Exemption (f) due to open investigations into these matters. Your response to each of Attorney Hamel's January requests indicates that the requests pertain to open investigations and disciplinary matters handled by the Board's Enforcement Division which independently investigates and prosecutes on behalf of the Board. You state, "[c]onsequently, neither the Board nor any of [its] divisions maintains any records responsive to this request in its possession, custody or control." Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding ofrecords that are: specifically or by necessary implication exempted from disclosure by statute 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 Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977).

Gerard F. Dolan, Esq. SPR19/182; 19/183; 19/184 Page 3 February 11, 2019 The statute cited by the Board provides the following, in pertinent part: The board, including but not limited to the data repository and the disciplinary unit, shall keep confidential any complaint, report, record or other information received or kept by the board in connection with an investigation conducted by the board pursuant to this section, or otherwise obtained by or.retained in the data repository; provided, however, that, except to the extent that disclosures of records or other information may be restricted as otherwise provided by law, or by the board's regulations, investigative records or information of the board shall not be kept confidential after the board has disposed of the matter under investigation by issuing an order to show cause, by dismissing a complaint or by taking other final action nor shall the requirement that investigative records or information be kept confidential at any time apply to requests from the person under investigation, the complainant, or other state or federal agencies, boards or institutions as the board shall determine by regulations. G. L. C. 112, § 5(h). The Board's response also states that the records may be withheld under its regulations. The Board asserts" ... under 243 C.M.R. 1.02(8)(b), before the Board issues a Statement of Allegations, dismisses a complaint, or takes other final action, the Board's records concerning a disciplinary matter are confidential." Further, the Board explains that under 243 C.M.R. 1.02(8)(c)(2), "Disciplinary Unit files, which contain portions of complaint files (and related confidential files) as well as papers related to adjudicatory proceedings and attorney work product, are not public records and are confidential." Given the language of G. L. c. 112, § 5(h), which states, " ... nor shall the requirement that investigative records or information be kept confidential at any time apply to requests from the person under investigation, the complainant, or other state or federal agencies, boards or institutions as the board shall determine by regulations," it is unclear whether Attorney Hamel has a unique right of access to these records. Lastly, the Board did not provide a response to Attorney Hamel's request for any memoranda, policy or other document discussing or justifying the Board's position to withhold the investigation files from his identified client who are under investigation. I find that the Board has not met its burden of specificity in withholding the responsive investigation records. Conclusion Accordingly, the Board is ordered to provide Attorney Hamel with a response to the requests, in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) 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.

Gerard F. Dolan, Esq. SPR19/182; 19/183; 19/184 Page4 February 11, 2019 Sincerely, ~ Rebecca S. Murray Supervisor of Records cc: Robert R. Hamel, Jr., Esq.