Colman Herman v. Board of Registration in Medicine (SPR 20231491)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 13, 2023 SPR23/1491 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 disciplinary records for a named individual. Prior Appeal This request was the subject of a previous appeal. See SPR23/0881 Determination of the Supervisor of Records (May 16, 2023). In my previous determination, it was my understanding that the Board intended to provide a further response to Mr. Herman. The Board provided a response on June 28, 2023. Unsatisfied with the Board’s response, Mr. Herman petitioned this office and this appeal, SPR23/1491, 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…”); 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. SPR23/1491 Page 2 July 13, 2023 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). If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Board’s June 28th Response In its June 28, 2023 response, the Board produced some records responsive to Herman’s request as follows: the Docket #18-192 complaint, Docket #18-192 correspondence, Docket in Adjudicatory #2020-033 and cited Exemptions (a), (c), and (f) of the Public Records Law and attorney-client privilege to redact and/or withhold responsive records. Current appeal In his appeal, Mr. Herman stated, “[the Board] claims attorney-client privilege pursuant to Suffolk, but it fails to comply with note 9. Also, in the board’s privilege log under ‘Subject Matter’ it just cites docket numbers in two entries… Also, the board’s claims of exemptions lacks the specificity required by the law.” Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute. G. L. c. 4, § 7(26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public’s right to inspect records under the Public Records Law is restricted. See Att’y Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either “shall not be a public record,” “shall be kept confidential” or “shall not be subject to the disclosure provision of the Public Records Law.” The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists

Tara R. Douglas, Esq. SPR23/1491 Page 3 July 13, 2023 individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. When citing Exemption (a) to withhold records, the Board states: Disciplinary Unit files, including records of the Disciplinary Unit’s investigation of any disciplinary matter (see G.L. c. 4, § 7(26)(a); see also G.L. c. 112, § 5, and 243 CMR 1.08(2)(c)(2) and (5); see also Determinations of the Supervisor of Public Records, Dockets No. SPR17/1073, SPR18/179. The statute and regulations provide in relevant parts: The board, including but not limited to the data repository and the disciplinary unit, shall keep confidential any complaint, report, record or other information received or kept by the board in connection with an investigation conducted by the board pursuant to this section, or otherwise obtained by or retained in the data repository; provided, however, that, except to the extent that disclosures of records or other information may be restricted as otherwise provided by law, or by the board’s regulations, investigative records or information of the board shall not be kept confidential after the board has disposed of the matter under investigation…. G. L. c. 112, § 5. Disciplinary Unit files, which contain portions of complaint files (and related confidential files) as well as papers related to adjudicatory proceedings and attorney work product, are not public records and are confidential. 243 C.M.R. 1.02(8)(2). Where the above statute and regulations contemplate the confidentiality of records related to complaints received or kept by the Board in connection with an investigation and records maintained in the Board’s Data Repository, I find the Board has met its burden to redact and withhold the records under Exemption (a) of the Public Records Law. As such, I decline to opine on the claim of Exemption (c) to redact and the claim of Exemption (f) of the Public Records Law to withhold responsive records. Common law attorney-client privilege A records custodian claiming the attorney-client privilege under the Public Records Law has the burden of not only proving the existence of an attorney-client relationship, but also (1) that the communications were received from a client during the course of the client’s search for legal advice from the attorney in his or her capacity as such; (2) that the communications were

Tara R. Douglas, Esq. SPR23/1491 Page 4 July 13, 2023 made in confidence; and (3) that the privilege as to these communications has not been waived. See Suffolk Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444, 450 n.9 (2017); see also Hanover Ins. Co. v. Rapa & Jepsen Ins. Servs., 449 Mass. 609, 619 (2007) (stating that the party seeking the attorney-client privilege has the burden to show the privilege applies). Records custodians seeking to invoke the common law attorney-client privilege “are required to produce detailed indices to support their claims of privilege.” Suffolk, 449 Mass. at 460. Pursuant to the Public Records Law, in assessing whether a records custodian has properly withheld records based on the claim of attorney-client privilege the Supervisor of Records “shall require, as part of the decision making process, that the agency or municipality provide a detailed description of the record, including the names of the author and recipients, the date, the substance of such record, and the grounds upon which the attorney-client privilege is being claimed.” G. L. c. 66, § 10A(a). In its response, the Board stated that records were withheld under the attorney-client privilege and provided a privilege log. I find that the Board has not satisfied the three-part test set out in the Suffolk case. See Suffolk, 449 Mass. at 460. Specifically, the Board must clarify that the communications were received from a client during the course of the client’s search for legal advice from the attorney in his or her capacity as such and that the communications were made in confidence and that the privilege as to these communications has not been waived. Further, the Board is advised that G. L. c. 66, § 10A(a) requires that a records custodian must provide a privilege log in accordance with the Public Records Law. The log must include the date, the names of the author and recipients, the substance of the record, and the grounds upon which the attorney-client privilege is being claimed. Upon review, the Board must clarify the subject matter of the privilege log and provide further detail. 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. Sincerely, Manza Arthur Supervisor of Records cc: Colman M. Herman