Chesley Oriel v. Department of Occupational Licensure (SPR 20212150)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 7, 2021 SPR21/2150 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 Law offices 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 in Veterinary Medicine [Board] 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? . . .; 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 A. Ging SPR21/2150 Page 2 September 7, 2021 Prior appeal – SPR21/1858 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. In his July 27, 2021 petition, Attorney Oriel indicated that his appeal deals with his Request Numbers 4 and 5. Attorney Oriel 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. As a result, this office opened the prior appeal, SPR21/1858. In my August 6th determination of SPR21/1858, I declined to opine on Request Number 4, as a specific request for votes cast or a roll call vote by the individual Board members and included with the meeting minutes is an issue that may fall under the requirements of the Open Meeting Law. The parties were encouraged to contact the Office of the Attorney General for a determination on that issue. With regard to Attorney Oriel’s Request Number 5, and based on the Division’s July 26th response, I found it is unclear whether the Board is in possession of the specific documents or records requested by Attorney Oriel. I ordered the Board to clarify whether it is in possession of such documents. See SPR21/1858 Determination of the Supervisor of Records (Supervisor) (August 6, 2021). The Division’s August 23rd response In its August 23, 2021 response to Request Numbers 4 and 5, the Division explained with regard to Request Number 5, that no responsive records exist. The Division further states, “such records from the aforementioned closed session were not created, and therefore no records exist that are responsive to Request No. 5.” Regarding Attorney Oriel’s Request No. 4, the Division’s August 23rd response states, “…the Division’s Records Access Officer recently learned that the Board’s chief administrator took hand-written personal notes at the investigatory conference. These notes are responsive to Request No. 4 but are exempt from disclosure pursuant to [G.L. c. 4, § 7(26)(e)] in that they are notes personal to the employee which she has kept to refresh her recollection of the meeting’s proceedings and not maintained as part of the official records of either the Division or Board.” Unsatisfied with the Division’s August 23rd response, Attorney Oriel petitioned the Supervisor, and the current appeal, SPR21/2150, was opened. In his petition, Attorney Oriel objects to the Division withholding the handwritten notes from the February 13, 2020 meeting under Exemption (e) of the Public Records Law.

Araceli A. Ging SPR21/2150 Page 3 September 7, 2021 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). Exemption (e) Exemption (e) permits the withholding of: notebooks and other materials prepared by an employee of the commonwealth which are personal to him and not maintained as part of the files of the governmental unit G. L. c. 4, § 7 (26)(e). The exemption may not be applied by custodians of records to withhold materials intended for communication or preservation. Records are protected from mandatory disclosure by Exemption (e) only if they meet the two criteria of the exemption. The first criterion of Exemption (e) limits its application to work-related records that can be characterized as “personal” to the employee, such as personal reflections on work-related activities and notes created by an employee to assist him/her in preparing reports for other employees or for the files of the governmental entity. Notes that have been shared by the employee may not be considered to be “personal” pursuant to Exemption (e). The second criterion of Exemption (e) requires that the notes not be kept in a government file. Under the exemption, “files of the governmental unit” excludes working files that are transitory in nature. Such files lack the permanent nature of a government file. Therefore, the retention of materials in such a working file would not bar the application of Exemption (e) and the records custodian may withhold from disclosure any personal notes that were not shared with others and were not part of such a governmental file. The Division asserts in its August 23rd response that the notes are personal to the employee who took those notes to refresh her recollection of the meeting’s proceedings, and that

Araceli A. Ging SPR21/2150 Page 4 September 7, 2021 the notes are not maintained as part of the official records of either the Division or Board. However, it is unclear whether the handwritten notes were shared with anyone. Furthermore, it is uncertain how the handwritten notes taken by the Board’s chief administrator are personal to her if the notes were taken to memorialize the proceedings of a public meeting or executive session meeting of the Board in order to draft permanent meeting minutes. Therefore, I find the Division has not met its burden of specificity in withholding the handwritten notes under Exemption (e). Burden of specificity in claiming an exemption The Division denied Attorney Oriel’s request for a record responsive to Request Number 4 without specifically demonstrating the requisite support for its Exemption (e) claim to withhold the handwritten notes from the meeting. Under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, § 10(b)(iv); see also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. Consequently, the Division did not meet its burden of demonstrating how the responsive record is exempt from disclosure. See Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Conclusion Accordingly, the Division is ordered to provide Attorney Oriel 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Chesley Oriel, Esq.