Chesley Oriel v. Department of Occupational Licensure (SPR 20212172)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 1, 2021 SPR21/2172 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 A. Ging SPR21/2172 Page 2 September 1, 2021 Prior appeal The responsive records were the subject of a prior appeal. See SPR21/1858 Determination of the Supervisor of Records (Supervisor) (August 6, 2021). On July 26, 2021, the Division of Professional Licensure indicated in its response that it previously provided Attorney Oriel with all the responsive records, except the records responsive to Request Numbers 4 and 5. As a result of not receiving the records responsive to Requests 4 and 5, Attorney Oriel petitioned the Supervisor, and the prior appeal, SPR21/1858 was opened. On August 19, 2021, Attorney Oriel contacted this office and indicated that he did not receive any records responsive to his Requests Numbered 1, 2, 3, 6 and 7. As a result, the current appeal was opened regarding those responsive records. 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). 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 accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). Whereas, Attorney Oriel informed this office that he did not receive any records responsive to his Requests Numbered 1, 2, 3, 6 and 7, the Division must provide Attorney Oriel with a copy of those records in its possession, custody or control. G. L. c. 66, § 10(a)(ii). Pursuant to the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. 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 . . .”); see also Globe Newspaper ----------------- Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The Division must clarify whether it is withholding records in its possession responsive to Requests Numbered 1, 2, 3, 6 and 7.

Araceli A. Ging SPR21/2172 Page 3 September 1, 2021 Order 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., Goldberg & Oriel