Richard L. Banks, Jr. v. Department of Public Health - Bureau of Health Professions Licensure (SPR 20211157)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 19, 2021 SPR21/1157 Helen Rush-Lloyd Records Access Officer Department of Public Health 250 Washington Street Boston, MA 02108 Dear Ms. Rush-Lloyd: I have received the petition of Richard Banks appealing the response of the Department of Public Health Bureau of Health Professions Licensure (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 18, 2021, Mr. Banks requested “all individuals whose nursing licenses (RN or LPN) were summarily suspended by the Board of Registration of Nursing between 1/1/2015 and 12/31/2020 and the dates those licenses were summarily suspended” and “all consent agreements executed between the individuals identified in request # 1 (above) and the Board of Registration in Nursing between 1/1/2015 and 12/31/2020.” The Department provided a response on May 4, 2021, which included a fee estimate. Unsatisfied with the Department’s response, Mr. Banks petitioned this office and SPR21/1157 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. 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

Helen Rush-Lloyd SPR21/1157 Page 2 May 19, 2021 The May 4th response In its May 4, 2021 response, the Department stated, “[p]lease find attached a spreadsheet in response to request #1. After a comprehensive search, DPH has identified approximately 600 pages of records that may be responsive to your request #2.” Mr. Banks appealed to this office on May 6, 2021 explaining that he had “personal knowledge, however, of the fact that three names responsive to my request were not included in the response provided to Request #1. Further, even a cursory review of the Nursing Board’s own publicly available website reveals that at least a dozen more names responsive to Request #1 were not included in the response provided.” Mr. Banks further stated in the appeal that the “Agency’s response to Request #2 included good faith estimates of the number of pages that would have to be reviewed and the number of hours that would be required to complete that review. Both estimates were apparently based on the inaccurate number of individuals identified in response to Request #1.” Records in existence The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). If the Department does possess requested records and intends to withhold portions of the records pursuant to the Public Records Law, an exemption must be provided. See G. L. c. 66, § 10(b)(iv) (custodian has the burden of establishing the applicability of an exemption and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based). In light of the issues raised by Mr. Banks regarding the existence of additional responsive records, I find it is unclear whether responsive records exist. The Department must clarify this matter. This office continues to encourage Mr. Banks and the Department to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, §10(b)(vii) (an agency shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency to produce records sought more efficiently and affordably). Conclusion Accordingly, the Department is ordered to provide Mr. Banks with a response to the request, 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.

Helen Rush-Lloyd SPR21/1157 Page 3 May 19, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: Richard Banks