Colman Herman v. Department of Occupational Licensure (SPR 20240732)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Office Manza Arthur Supervisor of Records March 25, 2024 SPR24/0732 Jessica L. Ellis, Esq. Assistant General Counsel for Public Affairs Division of Occupational Licensure 1000 Washington Street, Suite 710 Boston, MA 02118 Dear Attorney Ellis: I have received the petition of Colman Herman appealing the response of the Division of Occupational Licensure (Division) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On December 16, 2023, Mr. Herman requested, “... copies of disciplinary records that deal with the following events involving massage therapist [regarding] records that reveal the details of the incidents and the final dispositions of the cases ... for the period January 1, 2021 to the present.” [1.] Sexual misconduct ...[;] [2.] Inappropriate conduct with a patient or client ...[;] [3.] Patient abuse[.] On December 22, 2023, Mr. Herman modified his request for “the complaints that result in discipline.” Prior Appeal The requested records were the subject of a prior appeal. See SPR24/0557 Determination of the Supervisor of Records (March 7, 2024). In my March 7th determination, I learned that the Division intended to provide a further response to Mr. Herman. The Division responded on March 7, 2024. Unsatisfied with the Division’s March 7th response, Mr. Herman petitioned this office and this appeal, SPR24/0732, 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 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

Jessica L. Ellis, Esq. SPR24/0732 Page 2 March 25, 2024 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. The Department’s March 7th Response In its March 7, 2024 response, the Division provided the requested docket numbers and stated, “[the] appeal submitted February 21, 2024 identified the following documents that were not included with the responsive records, which the Division is reviewing and intends to provide subject to any applicable exemptions within 10 business days: 2019-000982-IT-ENF, Exhibits to the Tentative Decision; 2021-001066-IT-ENF, Exhibits to the Tentative Decision; 2021-000922- IT-ENF, Exhibits to Tentative Decision and 2021-000922-IT-ENF, Massage Envy formal report, attachment to Application for Complaint.” The Division further stated, [The] appeal listed additional documents as missing, including documents related to respondents by the [identified] names of ... and ... Absent docket numbers or identified page numbers in the responsive records, we are unable to determine what documents you are referencing. To ensure we can address this part of your appeal, please follow up with that information and we will review to determine whether additional responsive records exist. Current appeal In his appeal, Mr. Herman states that the “...claims of exemptions lack the specificity required by the public records law, as I stated in my appeal.” Mr. Herman further claims that requested documents are missing. Based upon review of the file, Mr. Herman’s appeal and the Division’s response indicating clarification is necessary to address Mr. Herman’s appeal, it is unclear what the basis of Mr. Herman’s appeal is. Mr. Herman is reminded that all petitions for appeal “shall specifically describe the nature of the requestor’s objections to the response or failure to timely respond.” 950 C.M.R. 32.08(1)(f). Please be aware that the request must reasonably describe the records sought. G. L. c. 66, § 10(a)(i).

Jessica L. Ellis, Esq. SPR24/0732 Page 3 March 25, 2024 I encourage Mr. Herman and the Division to communicate in order to facilitate producing records efficiently and affordably. Mr. Herman may wish to provide the necessary clarification to enable the search to be processed. G. L. c. 66, § l0(a)(i). The Division must use its knowledge of the records to facilitate providing any responsive records. G. L. c. 66, § l0(a)(vii) (an agency or municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency or municipality to produce records sought more efficiently and affordably). Conclusion Accordingly, I am unable to issue a determination at this time. Mr. Herman may wish to clarify his specific objections to the Division’s response. Sincerely, Manza Arthur Supervisor of Records cc: Colman Herman