Michael Cicione v. Board of Registration in Medicine (SPR 20232959)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 21, 2023 SPR23/2959 Tara 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 Michael Cicione appealing the response of the Board of Registration in Medicine (Board) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 18, 2023, Mr. Cicione requested “any and all documents that were obtained in [a specified] investigation.” The Board responded on October 12, and October 30, 2023, providing numerous responsive records, and citing Exemptions (a) and (f) of the Public Records Law, and the attorney-client privilege for withholding others. See G. L. c. 4, § 7(26)(a), (f). Unsatisfied with the Board’s response, Mr. Cicione appealed, and this case was opened as a result. Status of the Requestor In his appeal petition, Mr. Cicione notes that he “was the legal guardian and caretaker of” the individual involved in the records that are the subject of this request. Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Mr. Cicione’s status will play no role in a determination as to whether the records should be disclosed or redacted under the Public Records Law. 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 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 Douglas, Esq. SPR23/2959 Page 2 December 21, 2023 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(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Att’y for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. 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 October 30th Response In its October 30, 2023 response, the Board cites Exemptions (a) and (f) of the Public Records Law for withholding ‘the Disciplinary Unit files corresponding to” a specific docket number, and cites the attorney-client privilege for withholding one memorandum. See G. L. c. 4, § 7(26)(a), (f). 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 Douglas, Esq. SPR23/2959 Page 3 December 21, 2023 individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. In its October 30th response, the Board cites G. L. c. 112, § 5, which provides in pertinent part as follows: 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. In addition, the Board cites 243 C.M.R. 1.02(8)(c)(2) and (5), which provide in pertinent part as follows: 2. 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. . . . 5. Records of any Board unit’s review and investigation of statutory reports, consistent with 243 CMR 1.03(14); are not public records and are confidential. 243 C.M.R. 1.02(8)(c)(2), (5). In its October 30th response, under the statute and regulations cited above, the Board explains that “the Disciplinary Unit files corresponding to Dockets #21‐278 are withheld. This includes records of the Disciplinary Unit’s investigation of any disciplinary matter.” In this case, where the Board has explained that the Disciplinary Unit files are the types of records contemplated in the statute and regulations cited above, I find the Board has met its burden to withhold the Disciplinary Unit files under Exemption (a) of the Public Records Law and G. L. c. 112, § 5. Exemption (f) Exemption (f) permits the withholding of: investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such

Tara Douglas, Esq. SPR23/2959 Page 4 December 21, 2023 disclosure would not be in the public interest G. L. c. 4, § 7(26)(f). A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 371 Mass. 59, 62 (1976). Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Att’y Gen., 52 Mass. App. Ct. 244, 248 (2001); Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 290 n.18 (1979). Exemption (f) invites a “case-by- case consideration” of whether disclosure “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” See Reinstein, 378 Mass. at 289-90. In its October 30th response, the Board cites Exemption (f) for withholding “the Disciplinary Unit files corresponding to Dockets #21‐278.” Where the Disciplinary Unit files may be withheld pursuant to Exemption (a), I decline to address the Board’s claims under Exemption (f) for withholding these 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 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 (2007); see also Hanover Ins. Co. v. Rapo & 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 not inspect the record but 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 October 30th response, the Board states that “one attorney‐client memorandum was also withheld.” Additionally, the Board provides a brief index with some information on the authors, recipients, and subject matter of the withheld memo.

Tara Douglas, Esq. SPR23/2959 Page 5 December 21, 2023 Based on its October 30th response, it is unclear how the Board may withhold the responsive memorandum under the attorney-client privilege. Specifically, it is unclear how a record coauthored by an “Enforcement Clinical Investigator” may be withheld under the privilege. Additionally, although the Board lists the recipients as “Complaint Committee,” the Board has not provided the names of the recipients, as required by G. L. c. 66, § 10A(a). Further, the Board has not explained the grounds upon which the attorney-client privilege is being claimed. Additionally, the Board has not explained whether the communication was made during the course of a client’s search for legal advice from an attorney, whether the communication was made in confidence, and whether the privilege as to the communication has been waived. The Board must clarify these matters. Conclusion Accordingly, the Board is ordered to provide Mr. Cicione with a response to his request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Michael Cicione