Joseph B. Bertrand v. Board of Registration in Medicine (SPR 20191120)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords June 14, 2019 SPR19/1120 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 Joseph B. Bertrand, Esq. of Murray, Kelly & Bertrand, P. C. 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 Bertrand requested a copy of: "the complaint against my client [ an identified physician] in 2016 regarding the release of medical records." The Board's response June 5, 2019 In the Board's June 5th response, you state: "[f]ollowing a search of [the identified physician's] file, Board staff was unable to locate a written complaint against [the identified physician]. I have confirmed with the Board's Disciplinary Unit that the complaint was made by telephone. Therefore, the Board has no records responsive to your request in its possession, custody, or control. To clarify further, there is no recording or transcript of the telephone call that initiated the complaint. Therefore, there is nothing to provide Mr. Bertrand." In a June 11th letter, Attorney Bertrand contends that, "[t]here must be some document that exists that shows who made the complaint, when it was made, and about whom it refers to in the complaint of disclosing records." Records in its possession, custody and control; Records management and retention The duty to comply with requests for records extends to those records that exist and are in 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. SPR19/1120 Page 2 June 14, 2019 the possession, custody, or control of the custodian ofrecords at the time of the request. See G. L. 66, § IO(a)(ii). In light of the issue raised by Attorney Bertrand's June 3rd and June 11th letters, I find the Board must explain whether any responsive records existed and were destroyed, or whether the records did not initially exist. See G. L. c. 66, § 10( a)(ii), (b )(ii). A Public Records Division staff attorney contacted you regarding this request and appeal on June 7, 2019, seeking further information on the process and documentation of complaints made by telephone, but was unable to connect directly with you. Conclusion Accordingly, the Board is ordered to provide Attorney Bertrand with a response, in a manner consistent with this order, the Public Records Law and its Regulations within 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Joseph B. Bertrand, Esq.