Joseph B. Bertrand v. Office of the Attorney General (SPR 20191345)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords July 18, 2019 SPR19/1345 Lorraine A.G. Tarrow, Esq. Assistant Attorney General Office of the Attorney General 1 Ashburton Place Boston, MA 02108 Dear Attorney Tarrow: I have received the petition of Joseph B. Bertrand, Esq. appealing the response of the Office of the Attorney General (Office) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1 ). Specifically, Attorney Bertrand requested" ... an opportunity to inspect or obtain copies of public records in the Attorney General's Office regarding the investigation of [an identified individual], and any all communication with the Board of Registration of Medicine." The Office responded to his request providing responsive records and claiming others have been withheld pursuant to Exemptions (c) and (f) of the Public Records Law. G. L. c. 4, § 7(26)( c ), (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, § lO(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

Lorraine A.G. Tarrow, Esq. SPR19/1345 Page 2 July 18, 2019 Appeal In the Office's May 28, 2019 response, it indicates that it" ... enclose[d] six (6) pages of records that may be responsive to [Attorney Bertrand's] request and subject to disclosure under the public records law, G.L. c. 66, § 10 and G.L. c. 4, § 7, cl. 26." The Office further indicates that" ... additional records that may be responsive to [Attorney Be1irand's] request are being withheld in their entirety as they fall within the following exemptions from the definition of public records under G.L. c. 4, § 7, cl. 26 as they are: (c) patient files comprised entirely of medical information; and (f) investigatory materials, including interview rep01is and internal memoranda, that are necessarily complied out of the public view, the disclosure of which would so prejudice the possibility of effective law enforcement by revealing our investigative techniques or sources of information, or by causing a chilling effect on individuals to speak freely with law enforcement, that such disclosure would not be in the public interest." In Attorney Bertrand's petition for appeal, he asserts that" ... the [Office's] response dated May 28, 2019, was not responsive to [his request for] 'any communication with the Board of Registration of Medicine'" and indicates that " ... the complaint filed by the Attorney General was dismissed by the Board of Registration in Medicine." In a telephone conversation with the Office, this office learned that the Office intends to provide another response to Attorney Be1irand addressing the issues raised in his appeal. The Office additionally indicated that any communications between the Office and the Board of Registration of Medicine were done via telephone. Order Accordingly, the Office's response to Attorney Bertrand must be 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: Joseph B. Be1irand, Esq.