Brooks Egerton v. Department of Public Health (SPR 20213262)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 22, 2021 SPR21/3262 Helen Rush-Lloyd Records Access Officer Department of Public Health 250 Washington Street Boston, MA 02108 Dear Helen Rush-Lloyd: I have received the petition of Brooks Egerton appealing the response of the Department of Public Health (Department) to a request for public records. G. L. c. 66 § 10A; see also 950 C.M.R. 32.08(1). On September 20, 2021, Mr. Egerton requested, “…electronic copies of all Board of Registration in Dentistry discipline related documents created since 1/1/2014, such as statements of allegations, recommended decisions from administrative magistrates and judges, final decisions, board orders, resignations, stipulations, and agreements not to practice…If you have an actual spreadsheet of dental board actions, please email that to me as well.” Previous Appeals This request has been the subject of previous appeals. See SPR21/2709 Supervisor of Records Determination (October 27, 2021) and SPR21/2982 Supervisor of Records Determination (November 18, 2021). In the November 18th determination, I closed Mr. Egerton’s appeal in light of the Department’s intent to post certain records sought by Mr. Egerton online per his request. Unsatisfied with the Department’s response, Mr. Egerton petitioned this office and this appeal, SPR21/3262, 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 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 SPR21/3262 Page 2 December 22, 2021 order to withhold a requested record. G. L. c. 66, § 10(d)(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). Current Appeal The Department provided a fee estimate for the records on November 8, 2021. On November 15, in a telephonic conference, the Department informed a member of the Public Records Division that it had begun posting responsive records online per Mr. Egerton’s request. In his appeal petition, Mr. Egerton stated, “[The Supervisor’s] letter seemed premature because the requested records had not been [fully] posted online. A month later, I still see no sign that they have been posted.” Conclusion In compliance with the Public Records Law, the Supervisor of Records may only issue determinations where a violation of G. L. c. 66, § 10 has occurred. G. L. c. 66, § 10A(a). Given that no violation of G. L. c. 66, § 10 has been asserted by Mr. Egerton in his current appeal petition, I am unable to issue a determination at this time. Mr. Egerton may appeal the substance of the Department’s fee estimate within 90 days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Brooks Egerton