Jarod Lowrey v. Board of Registration in Medicine (SPR 20200346)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords March 6, 2020 SPR20/0346 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 SPRl 9/2459 Supervisor of Records Determination (December 27, 2019); SPR20/0050 Supervisor of Records Determination (January 27, 2020); SPR20/0211 Supervisor of Records Determination (February 20, 2020). In my February 20th determination I found that the basis of Mr. Lowrey's appeal was unclear. Consequently, I indicated this office was unable to opine on the appeal at this time. Mr. Lowrey provided con-espondence to this office on February 21, 2020 and SPR20/0346 was opened as a result. 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, regardlyss 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, § IO(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 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. SPR20/0346 Page 2 March 6, 2020 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. 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 p01iions 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 2th 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 part 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 February 4111 response The Board provided additional arguments regarding its Exemption ( c) claim. You asserted, 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.' Fmiher, your assertion that '[a]ll 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 indicated 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 comis 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).

Gerard F. Dolan, Esq. SPR20/0346 Page 3 March 6, 2020 The Board fmiher indicated, 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 court where it was filed." (emphasis in original). You also noted" ... 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 current appeal petition Mr. Lowrey indicates "I'm objecting to them withholding this public record. Please obtain it for me. They seem to be discriminating against me because they have released Offer of Proofs before." Despite the most recent appeal petition, I find the basis of Mr. Lowrey's appeal remains unclear. The Board cites Exemptions (a) and (c) to withhold records; however, Mr. Lowrey does not provide specific reasons why he believes these exemptions do not apply. Further, Mr. Lowrey does not appear to object to the Board's argument that this record contains medical information. In addition, 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 )(f) (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