Chesley Oriel v. Department of Occupational Licensure (SPR 20211858)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 6, 2021 SPR21/1858 Araceli A. Ging Records Access Officer Department of Professional Licensure 1000 Washington Street, Suite 710 Boston, MA 02118 Dear Ms. Ging: I have received the petition of Chesley Oriel, Esq. of Goldberg & Oriel appealing the response of the Department of Professional Licensure – Division of Occupational Licensure (Division) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 6, 2021, Attorney Oriel requested: 1. A copy of all rules, statutes, and case law that permits the Board to conduct meetings, including what your Board of Registration [Board] in Veterinary Medicine refers to as “investigative conference” in secret; meaning without members of the public being present; 2. A copy of all rules, statutes, and case law that allows the Board to make decisions relating to the license of those individuals that the Board licenses, in secret; meaning without a public hearing; 3. A copy of any and all memoranda, notes, directives that have been issued by you or by any predecessor Commissioner concerning the manner in which decisions are to be made by the Board in response to any complaint filed against a licensee; 4. The names of the Board Members who made the decision regarding Docket # 2019- 001284-IT-ENF. Please note that a copy of what is described as the “Public Meeting Minutes for February 13, 2020” for the Board, mention Complaint #2019-001284- IT-ENF, but fails to mention the names of the Board members who actually voted to dismiss that complaint and/or what the vote was, meaning was it unanimous or divided? See copy of minutes attached; 5. A copy of the document signed by the Board [m]embers who rendered the decision regarding Docket # 2019-001284-IT-ENF; 6. A copy of the job description for the position held by the Executive Director of [t]he [Board]; and, 7. The dates of [a]ppointment for each Board member on the [Board]. 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

Araceli Avila Ging SPR21/1858 Page 2 August 6, 2021 The Division of Professional Licensure provided Attorney Oriel with a July 26, 2021 response. The response indicates that the Division previously provided Attorney Oriel with all the responsive documents to this request and prior requests. Unsatisfied with the July 26th response, Attorney Oriel petitioned the Supervisor of Records, and this appeal was opened. In his July 27th petition, Attorney Oriel indicates that this appeal deals with his Requests 4 and 5. He seeks a record or document signed by the Board members that demonstrates which Board members voted to dismiss the complaint. It is Attorney Oriel’s contention that such a record should be retained in the complaint file. Attorney Oriel also seeks the names of the Board members who cast a vote to dismiss the complaint and/or what the vote was, unanimous or divided. He asserts, “I have attempted numerous ways to find out who, meaning which Board [m]embers voted/decided t[o] dismiss my complaint, and the Board refuses to provide that information.” 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) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based…”); 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). Based on the Division’s July 26th response, it is unclear whether the Board is in possession of the specific documents or records requested by Attorney Oriel. I find that the Board must clarify whether it is in possession of such documents. See Attorney Oriel’s Request No. 5 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). In addition, under the Public Records Law the Department is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d).

Araceli Avila Ging SPR21/1858 Page 3 August 6, 2021 Open Meeting Law – Request No. 4 With regard to Request No. 4 for the specific votes cast by the individual Board members to dismiss Attorney Oriel’s complaint, I find that to the extent that a roll call vote should have been recorded and included with the meeting minutes is an issue that may fall under the requirements of the Open Meeting Law. See G. l. c. 30A, § 23. Given that an interpretation of the Open Meeting Law falls within the authority of the Office of the Attorney General and not this office, I decline to address that issue. I encourage the parties to contact the Office of the Attorney General for a determination on this issue. Conclusion Accordingly, the Board is ordered to provide Attorney Oriel with a response to his Request No. 5, 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Chelsey Oriel, Esq., Goldberg & Oriel