Jarod Lowrey v. Board of Registration in Medicine (SPR 20200211)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 20, 2020 SPR20/0211 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 Jared Lowrey appealing the response of the 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, Mr. Lowrey requested the "Offer of Proof' pertaining to a certain medical malpractice case. Previous appeals This request was the subject of previous appeals. See SPR19/2459 Supervisor of Records Determination (December 27, 2019); SPR20/0050 Supervisor of Records Determination (January 27, 2020). In my January 27th determination I ordered the Board to provide Mr. Lowrey with a response to the request, provided in a manner consistent with the order, the Public Records Law and its Regulations. The Board responded on February 4, 2020. Mr. Lowrey appealed and SPR20/02 l 1 was opened as a result. Tlie 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, § 1 OA( 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 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. SPR20/0211 Page 2 February 20, 2020 must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. Current Appeal The Board initially responded to Mr. Lowrey on December 10, 2019 and indicated that the requested records contain "individually identifying medical information," and as such is withholding responsive records pursuant to Exemptions (a) and (c) of the Public Records Law. In my December 27th determination I found that based on the Board's response, it appeared that the records may contain medical information that is exempt from disclosure under Exemptions (a) and (c). However, it was unclear how segregable portions of the responsive records cannot be provided. I indicated that the Board must explain why segregable portions of the responsive records cannot be provided. The Board provided a response on January 9, 2020 that included additional information regarding the type of records at issue as well as its exemption claims. In my January 27th determination I found that although the Board provided additional information regarding its claims under Exemptions (a) and (c), it was first necessary to determine whether the Offer of Proof at issue in this appeal is available from other sources. In particular, I indicated the Board must clarify whether this record is paii of a case file that is publically available from the relevant court. The Board addressed this issue, as well as its Exemption ( c) claim, in its February 4th response. The Board's Februa,y 4111 response The Board provides additional arguments regarding its Exemption ( c) claim. You assert, in part," ... it is abundantly clear that the highly-detailed medical information described in the Offer of Proof and its attached medical records is 'sufficiently personal to warrant exemption.' Further, your assertion that ' [a ]11 the Board needs to do is get a black marker and redact the personal data' is not true. As your initial request makes clear, you are already aware of the identity of the patient in this matter. Therefore, redaction of the patient's identity would be insufficient to protect the confidentiality of her personal medical information described throughout the document." With respect to whether the record is available from other sources, you indicate that you contacted the office of the clerk of Hampden Superior Court, which is where requested Offer of Proof was filed. You explained that "[t]he clerk's office replied that the court would release an Offer of Proof unless it is impounded. Therefore, the answer to the Supervisor's inquiry is that an Offer of Proof is typically available from the relevant court. However, because the courts have authority to impound documents submitted into the record, it is impossible for the Board to know whether a particular Offer of Proof is in fact available to the public from the court." (e mphasis in original). The Board further indicates, in part," ... if there were some public purpose in your obtaining the requested Offer of Proof, the appropriate avenue would be to request it from the

Gerard F. Dolan, Esq. SPR20/02 l 1· Page 3 February 20, 2020 court where it was filed." ( emphasis in original). You also note " ... the Board cannot publicly release an Offer of Proof containing highly personal information when it may be under an order of impoundment at the relevant court. The only authority on the current impoundment status of an Offer of Proof is the court itself. You are therefore directed to request a copy of the Offer of Proof directly from the Hampden Superior Court." Basis oft he appeal In his appeal petition Mr. Lowrey indicates "I would like to further appeal the Board of Medicine's response that they will not turn over to the public the Offer of Proof which we as taxpayers own. Please obtain it for me." Based on the appeal petition, I find the basis of Mr. Lowrey's appeal is unclear. Specifically, although the Board cites Exemptions (a) and (c) to withhold records, it is unclear whether Mr. Lowrey objects to the Board's exemption claim, and if so, the requestor has not explained the basis of this objection. Further, Mr. Lowrey does not address the Board's contention that he may be able to obtain the record from Hampden Superior Court. Consequently, this office is unable to opine on the appeal at this time. See 950 C.M.R. 32.08(1)(£) (all petitions for appeal shall be in writing and shall specifically describe the nature of the requestor's objections to the response or failure to issue a timely response). Mr. Lowrey may wish to clarify the nature of his objections. Sincerely, Rebecca S. Murray Supervisor of Records cc: Jarod Lowrey