Bill Marshall v. Board of Registration in Medicine (SPR 20240698)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 19, 2024 SPR24/0698 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 William Marshall, of Judicial Watch, Inc., 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 February 21, 2024, Mr. Marshall requested the following records: [1.] All emails sent to and from members of the Board of Registration in Medicine (BRM) regarding [a named individual]. [2.] All emails sent to and from [a specific] BRM Investigator ... regarding [the individual]. [3.] All investigative records regarding or relating to prior investigations of any physicians other than [the individual] in the history of the MA licensing board whose licenses were suspended, revoked, considered for suspension/revocation, or otherwise investigated based upon an “inchoate right” to practice medicine in Massachusetts, as is the case of [the individual] as described in [a specified hyperlink] The time frame for the records sought in Bullets 1 and 2 is February 21, 2022 to the present. The time frame for the records sought in Bullet 3 is the entire history of the BRM. The Board responded on March 6, 2024, citing Exemptions (a) and (f) of the Public Records Law for withholding responsive records. See G. L. c. 4, § 7(26)(a), (f). Unsatisfied with the Board’s response, Mr. Marshall appealed, and this case was opened as a result. 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. SPR24/0698 Page 2 March 19, 2024 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(b)(iv); 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). 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. Current Appeal In his appeal petition, Mr. Marshall contends that “the records [he] requested in Items 1 and 2 are for emails regarding [the named individual] generally. The Board’s blanket denial of the records sought, based on the law cited, is overly broad.” The Board’s March 6th Response In its March 6, 2024 response, the Board cites Exemption (a) of the Public Records Law, and G. L. c. 112, § 5, along with Exemption (f), for withholding responsive records. See G. L. c. 4, § 7(26)(a), (f). Additionally, the Board provides “a list of licensees who have had their inchoate right to renew their medical license suspended or revoked, or who have resigned their inchoate right to renew their medical license in the last two years,” and provided a link to part of its website with related information. 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).

Tara Douglas, Esq. SPR24/0698 Page 3 March 19, 2024 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 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 March 6th 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. The Board also cites 243 C.M.R. 1.02(8)(b), which provides in pertinent part: Before the Board issues a Statement of Allegations, dismisses a complaint, or takes other final action, the Board’s records concerning a disciplinary matter are confidential. 243 C.M.R. 1.02(8)(b). In addition, the Board cites 243 C.M.R. 1.02(8)(c)(2) and (5), which provide in pertinent parts 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.

Tara Douglas, Esq. SPR24/0698 Page 4 March 19, 2024 . . . 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). With regard to Parts 1 and 2 of the request, under the statute and regulations cited above, the Board argues the following: The Board 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. See G.L. c. 112, § 5. The Board cannot confirm nor deny the existence of an open complaint. Before the Board issues a Statement of Allegations, dismisses a complaint, or takes other final action, the Board’s records concerning a disciplinary matter are confidential. See G.L. c. 4, § 7(26)(a); see also 243 CMR 1.02(8)(b). Therefore, to the extent responsive records may exist, they are withheld. With regard to Part 3 of the request, the Board provides “a list of licensees who have had their inchoate right to renew their medical license suspended or revoked, or who have resigned their inchoate right to renew their medical license in the last two years,” and argues the following: Investigative records of disciplinary actions are not public record. See G.L. c. 4, § 7(26)(a); see also G.L. c. 112, § 5, and 243 CMR [1.02(8)(c)(2)] and (5); see also Determinations of the Supervisor of Public Records, Dockets No. SPR17/1073, SPR18/179. Such records constitute investigatory material compiled outside of the public view by law enforcement or other investigatory officials the disclosure of which would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest. See G.L. c. 4, § 7(26)(f); see also Bougas v. Chief of Police of Lexington, 371 Mass. 59, 62 (1976). Therefore, responsive records to this request are exempt from public disclosure. With regard to Part 3 of the request, where the Board has explained that the responsive investigative records are the types of records contemplated in the statute and regulations cited above, I find the Board has met its burden to withhold records responsive to Part 3 under Exemption (a) of the Public Records Law and G. L. c. 112, § 5. With regard to Parts 1 and 2 of the request, I find it is it is unclear from the Board’s response what records the Board intends to withhold. The Board must identify the records, categories of records, or portions of records it intends to withhold under Exemption (a) and G. L. c. 112, § 5. See G. L. c. 66, § 10(b)(iv) (a 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”).

Tara Douglas, Esq. SPR24/0698 Page 5 March 19, 2024 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 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 March 6th response, the Board cites Exemption (f) for withholding records responsive to Part 3 of the request. Where those records may be withheld pursuant to Exemption (a), I decline to address the Board’s claims under Exemption (f) for withholding records responsive to Part 3. Conclusion Accordingly, the Board is ordered to provide Mr. Marshall with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) 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: Tara Douglas, Esq.