Colman Herman v. Division of Occupational Licensure (SPR 20241306)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Office Manza Arthur Supervisor of Records May 14, 2024 SPR24/1306 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); SPR24/0732 Determination of the Supervisor of Records (March 25, 2024) and SPR24/0987 Determination of the Supervisor of Records (April 12, 2024). In my April 12th determination, I found that that the Division did not meet its burden to show that the entire records fall within the Criminal Offender Record Information (CORI) Act. The Division responded on April 29, 2024. Unsatisfied with the response, Mr. Herman petitioned this office and this appeal, SPR24/1306, 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. SPR24/1306 Page 2 May 14, 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 April 29th Response In its April 29, 2024 response, the Division cited the Criminal Offender Record Information (CORI) Act, as it operates through Exemption (a) of the Public Records Law, to withhold the requested records. Current appeal In his appeal, Mr. Herman states, “[the Division] wrongly argues that police reports for each of the cases are exempt from disclosure based on CORI. Accordingly, please order DOL to produce the police reports. [The Division] writes the following in [its] letter regarding the missing page of the ... case. ‘In regard to the missing page, the Division conducted a search for the [second] page of the Application for complaint and it was not located. We are unable to determine whether the record existed or not, but have no indication that it existed and was destroyed.’ Of course it existed; It was part of a preprinted form. Accordingly, please instruct DOL on the proper retention of public records.” 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

Jessica L. Ellis, Esq. SPR24/1306 Page 3 May 14, 2024 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 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. In its response, the Division stated the following regarding three identified cases:

Jessica L. Ellis, Esq. SPR24/1306 Page 4 May 14, 2024 . . . The records you identify as missing are . . . police report[s] that the Division withheld under the Criminal Offender Record Information Act (“CORI”). The records contain information regarding an identifiable individual and relate to the nature or disposition of a criminal charge(s) not dismissed before an arraignment. G. L. c. 6, § 167. The records were withheld as they are exempt from disclosure pursuant to G.L. c. 4, § 7(26)(a), which applies to 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). Missing page The Division also stated with regard to Mr. Herman’s Item 3 and a missing page, “... the Division conducted a search for the [second] page of the Application for complaint and it was not located. We are unable to determine whether the record existed or not, but have no indication that it existed and was destroyed.” 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). Where the Division has confirmed that it was not able to locate the missing page and has further stated that it is “. . . unable to determine whether the record existed or not, but have no indication that it existed[,]” I find that Mr. Herman’s appeal concerning this issue is resolved. 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).

Jessica L. Ellis, Esq. SPR24/1306 Page 5 May 14, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Colman Herman