Chesley Oriel v. Department of Occupational Licensure (SPR 20212474)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 12, 2021 SPR21/2474; SPR21/2476 Araceli A. Ging Records Access Officer Department of Occupational Licensure Office of the Legal Counsel 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 Division of Occupational Licensure (Division) and the Board of Registration in Veterinary Medicine (Board) 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 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 SPR21/2474; SPR21/2476 Page 2 October 12, 2021 Prior appeals The requested records were the subject of prior appeals. -Se-e SPR21/1858; SPR21/2172 and SPR21/2150 Determinations of the Supervisor of Records (Supervisor) (August 6, 2021; September 1, 2021 and September 7, 2021). Current appeals – SPR21/2474 and SPR21/2476 Where Attorney Oriel’s September 27, 2021 petition for a further appeal regarding SPR21/1858 and SPR21/1272 contains the same objections, I have combined the two appeals into this October 12, 2021 determination. In its August 23rd response, the Division and/or Board indicate that it has one record responsive to Attorney Oriel’s Request No. 4, which the Board has withheld under Exemption (e). Based on the Division/Board’s August 23rd response, it is unclear whether the Board is in possession of any records that were used or created during the investigatory conference and were withheld. The Division/Board must provide a response to clarify this issue. Exemption (e) In my September 7th determination, I found that the Division and Board did not meet their burden of specificity in withholding the handwritten notes under Exemption (e). I ordered the Division/Board to provide a response to support its Exemption (e) claim to withhold the handwritten notes from the investigatory conference. 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

Araceli A. Ging SPR21/2474; SPR21/2476 Page 3 October 12, 2021 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 Board 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 the notes are not maintained as part of the official records of either the Division or Board. However, it is still unclear whether the responsive notes were shared with anyone. Therefore, I find that the Division and Board have not met their burden of specificity in withholding the handwritten notes under Exemption (e). Conclusion Accordingly, the Division and/or Board 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