Colman Herman v. Division of Occupational Licensure (SPR 20240987)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Office Manza Arthur Supervisor of Records April 12, 2024 SPR24/0987 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 Appeals The requested records were the subject of prior appeals. See SPR24/0557 Determination of the Supervisor of Records (March 7, 2024) and SPR24/0732 Determination of the Supervisor of Records (March 25, 2024). In my March 25th determination, I found that the basis of Mr. Herman’s appeal was unclear, and encouraged the parties to communicate in order to facilitate producing records efficiently and affordably. The Division responded on March 28, 2024. Unsatisfied with the response, Mr. Herman petitioned this office and this appeal, SPR24/0987, 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

Jessica L. Ellis, Esq. SPR24/0987 Page 2 April 12, 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. The Division’s March 28th Response In its March 28, 2024 response, the Division cited Exemption (a) of the Public Records Law and specifically, the Criminal Offender Record Information (CORI) Act to withhold the requested records. Current appeal In his appeal, Mr. Herman limits his request for records to the following: [1.] [an identified] case: ... the attachment cited on the third from the last page of the following document [‘Application for Complaint’]. [2.] [an identified] case: ... the attachment cited on the last page of the following document [‘Application for Complaint’]. [3] [an identified] case: The second page of the Application for Complaint is missing from the following document ... 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).

Jessica L. Ellis, Esq. SPR24/0987 Page 3 April 12, 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. The current definition of CORI is as follows: “Criminal offender record information,” records and data in any communicable form compiled by a Massachusetts criminal justice agency which concern an identifiable individual and relate to the nature or disposition of a criminal charge, an arrest, a pre-trial proceeding, other judicial proceedings, previous hearings conducted pursuant to section 58A of chapter 276 where the defendant was detained prior to trial or released with conditions under subsection (2) of section 58A of chapter 276, sentencing, incarceration, rehabilitation, or release. Such information shall be restricted to information recorded in criminal proceedings that are not dismissed before arraignment. Criminal offender record information shall not include evaluative information, statistical and analytical reports and files in which individuals are not directly or indirectly identifiable, or intelligence information. Criminal offender record information shall be limited to information concerning persons who have attained the age of 18 and shall not include any information concerning criminal offenses or acts of delinquency committed by any person before he attained the age of 18; provided, however, that if a person under the age of 18 was adjudicated as an adult in superior court or adjudicated as an adult after transfer of a case from a juvenile session to another trial court Division, information relating to such criminal offense shall be criminal offender record information. Criminal offender record information shall not include information concerning any offenses which are not punishable by incarceration. G. L. c. 6, § 167. With regard to Items 1, 2, and 3 of Mr. Herman’s appeal, the Division stated, “[r]ecords containing information under the Criminal Offender Record Information Act (‘CORI’) have been withheld as it is exempt from disclosure pursuant to G.L. c. 4, § 7(26)(a), which applies to

Jessica L. Ellis, Esq. SPR24/0987 Page 4 April 12, 2024 records that are ‘specifically or by necessary implication exempted from disclosure by statute’. Dissemination of CORI to unauthorized individuals is prohibited pursuant to the Criminal Offender Record Information Act (See G. L. c. 6, § 167-178L; 803 CMR § 7.09(1)).” Based on the Division’s response, I find that the Division has not met its burden to show that the entire records fall within the CORI Act. Specifically, the Division has not demonstrated that all of the withheld records constitute “information recorded in criminal proceedings that are not dismissed before arraignment” as defined in G. L. c. 6, § 167. Therefore, the Division may not withhold the records in their entirety pursuant to Exemption (a). See Reinstein v. Police Comm’r of Boston, 378 Mass. 291, 289-90 (1989) (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). No Duty to Create Records The Division also stated with regard to Mr. Herman’s Item 3 and a missing page, “[n]o second page exists in our file.” The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). Based on the Department’s response, I find it is unclear whether the responsive record or the second page existed and was destroyed, or whether the record did not initially exist. See G. L. c. 66, § 10(a)(ii), (b)(ii). Conclusion Accordingly, the Division is ordered to provide a response to Mr. Herman, 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. Mr. Herman may appeal the substantive nature of the Division’s response within ninety calendar days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Colman Herman