Colman Herman v. Board of Registration in Medicine (SPR 20202081)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 9, 2020 SPR20/2081 Tara Douglas, Esq. Assistant General Counsel Board of Registration in Medicine 200 Harvard Mill Square, Suite 330 Wakefield, MA 01880 Dear Attorney Douglas: I have received the petition of Colman Herman appealing the response of the Board of Registration in Medicine (Board) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on October 4, 2020, Mr. Herman requested “. . . hard copies and electronic copies of records that detail malpractice suits against physicians, as cited in the board’s physician profiles. This is for the period January 1, 2015 to the present.” The Board provided a response on October 26, 2020, denying access to responsive records pursuant to Exemptions (a) and (c) of the Public Records Law. G. L. c. 4, § 7(26)(a), (c). Unsatisfied with the Board’s response, Mr. Herman petitioned this office and this appeal, SPR20/2081, 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, § 10A(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, § 10(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. If there are any fees associated with a response a written, good faith estimate must be 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

Tara Douglas, Esq. SPR20/2081 Page 2 November 9, 2020 provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Board’s October 26th response In its October 26, 2020 response, the Board provided a link to its website where Mr. Herman could access responsive records and indicated it has no duty to create new records. The Board also asserts that it “. . . is prohibited by statute from disclosing certain records related to statutory reports submitted pursuant to G.L. c. 111, § 53B; G.L. c. 112, §§ 5A through 5I; and/or 243 CMR 2.00, including self-reports. See G.L. c. 4, § 7(26)(a); see also G.L. c. 112, § 5, and 243 CMR 1.02(8), 1.03(14), 2.13 and 2.14.” The Board explains that “[t]his may include offers of proof, ‘closed claim’ reports by medical malpractice insurers (see M.G.L. c. 112, §5C), court reports of medical malpractice matters (see M.G.L. c. 231, §60B), and certain licensing materials (see M.G.L. c. 112, § 2 and 243 CMR 2.01(5), see also 243 CMR 2.14(4)(b).” The Board further asserts that it “. . . is prohibited from disclosing records, and information acquired therefrom, that is maintained in the Board’s Data Repository as they are confidential pursuant to statute. Mandated reports are confidential, unless otherwise required by law. See G.L. c. 4, § 7(26)(a); see also G.L. c. 112, § 5. See also 243 CMR 2.13. If the Board does not issue a Statement of Allegations based upon a statutory report, the statutory report and the records directly related to its review and investigation shall remain confidential. See 243 CMR 1.03(14). Therefore, to the extent that the Board possesses any responsive records described in the preceding . . . paragraph[], they are withheld.” Further, the Board asserts that “Offers of Proof are withheld as they contain patient medical records and/or discussions or quotations of patient medical records are exempt from disclosure. See G.L. c. 4, § 7(26)(a) and (c); see also HIPAA; see also Determination of the Supervisor of Public Records, Docket No. SPR17/570 (May 10, 2017). Medical and personnel files or information are absolutely exempt from mandatory disclosure where the files or information are of a personal nature and relate to a particular individual. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 438 (1983). The release of the medical statements, even without other particular identifying details, create[s] a grave risk of indirect identification. Id. Records which are filed with a governmental entity merely to aid that entity in the administration of its duties are not public records. Id. at 440.” The Board explains that “[r]eports of medical malpractice matters, which may include patient medical records as part of complaints or Offers of Proof, are maintained in the Board’s Data Repository as records filed ancillary to the Medical Malpractice Tribunal Findings and Final Disposition by Court of Malpractice Claim records submitted pursuant to M.G.L. c. 231, § 60B and 243 CMR 2.14.” The Board states that “[s]uch reports remain confidential unless there is a resignation, or a Statement of Allegations is issued as a result of the report. See 243 CMR 1.03(14). The relevant court where an Offer of Proof was filed would release an Offer of Proof unless it is impounded. However, because the courts have authority to impound documents submitted into the record, it is impossible for the Board to know whether a particular filing is in

Tara Douglas, Esq. SPR20/2081 Page 3 November 9, 2020 fact available to the public from the court, as the Board does not receive, nor does it closely follow, every filing in a particular medical malpractice case.” The Board references a previous determination, SPR20/0346. Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records 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). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either “shall not be a public record,” “shall be kept confidential” or “shall not be subject to the disclosure provision of the Public Records Law.” The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. Exemption (c) Exemption (c) permits the withholding of: personnel and medical files or information; also any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy G. L. c. 4, § 7(26)(c). First clause of Exemption (c) – medical Exemption (c) contains two distinct and independent clauses, each requiring its own analysis. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 432-33 (1983). The first clause, relevant to this determination, creates a categorical exemption for personnel and

Tara Douglas, Esq. SPR20/2081 Page 4 November 9, 2020 medical information that relates to an identifiable individual and is of a “personal nature.” Id. at 434. Medical information that is of a personal nature and relates to a specifically named individual is exempt from disclosure. Brogan v. School Comm. of Westport, 401 Mass. 306, 308 (1987); Globe Newspaper Co., 388 Mass. at 438. Generally, medical information is sufficiently personal to warrant exemption. Globe Newspaper Co., 388 Mass. at 432-34. There is a strong public policy in Massachusetts that favors confidentiality as to medical data about a person’s body. Globe Newspaper Co. v. Chief Medical Examiner, 404 Mass. 132, 135 (1987). In his appeal petition, Mr. Herman states the following: 3) Ms. Douglas fails to state what records actually exist. In that regard, she states the following. “To the extent that the Board possesses any responsive records . . .” Clearly Ms. Douglas has no idea what records actually exist. In that regard, when I wrote to her on October 26, 2020, “So you don’t even know if you have any responsive records,” she responded : Yes . . . 4) Ms. Douglas suggests that I use BORIM’s physician profiles on its website to find the malpractice suits. That would mean that I would have to pull up over 40,000 profiles — that is completely unrealistic. 5) Accordingly, please order BORIM to produce the responsive records. Based on the Board’s response, although it cites various statutes and regulations that permit it to withhold certain records from disclosure, it is unclear what records the Board possesses that are responsive to Mr. Herman’s request. Further, although the Board cites 950 C.M.R. 32.04(5)(e), and provides a link to enable Mr. Herman access public malpractice information, based on Mr. Herman’s claim, it is uncertain how the Board has provided Mr. Herman with reasonable assistance to enable him to access records responsive to his request. This office encourages the Board and Mr. Herman to communicate further in order to enable access to responsive records. Conclusion Accordingly, the Board is ordered to provide Mr. Herman with a response to the request, provided 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Colman Herman