Colman Herman v. Board of Registration in Medicine (SPR 20230872)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 16, 2023 SPR23/0872 Tara R. Douglas, Esq. Assistant General Counsel Board of Registration in Medicine 178 Albion Street, Suite 330 Wakefield, MA 01880 Dear Attorney Douglas: I have received the petition of Colman M. Herman appealing the response of the Board of Registration in Medicine (Board) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 27, 2023, Mr. Herman requested complete disciplinary files for two named doctors. The Board provided responses on April 18, 2023 and April 28, 2023. Unsatisfied with the Board’s responses, Mr. Herman petitioned this office and this appeal, SPR23/0872, 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 agency or municipality 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(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). 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

Tara R. Douglas, Esq. SPR21/0872 Page 2 May 16, 2023 The Board’s April responses In its April 18, 2023 communication, the Board provided a response regarding one of the identified doctors. The Board also asked for an extension for the response to the request on the second requested doctor. In its April 28, 2023 response, the Board stated the following: “[d]ue to file size, (~22MB), please retrieve the Board’s response to your public records request…from Adobe Cloud.” The Board provided a link to access the records. Current appeal In his appeal, Mr. Herman advised that the Board provided links to the responsive records which he could not access and he has not received the records. Preferred Format A records access officer must, to the extent feasible, provide public records to a requestor in electronic format unless the record is not available in electronic form or the requestor does not have the ability to receive or access the records in electronic format and if feasible, in the requestor’s preferred format. In the absence of a preferred format, the records must be provided in a searchable machine-readable form. See 950 C.M.R. 32.04(5)(d). In light of Mr. Herman’s appeal, I find the Board must clarify whether the responsive report can be provided in the format that Mr. Herman requested, and whether the Board has in its possession the disciplinary records pertaining to the doctor referenced in his appeal. I encourage the parties to work together to resolve the outstanding issues. Conclusion Accordingly, the Board is ordered to provide Mr. Herman with a response to the request, provided 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. Mr. Herman may appeal the substantive nature of the Board’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Colman M. Herman