Colman Herman v. Division of Occupational Licensure (SPR 20241412)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Office Manza Arthur Supervisor of Records May 23, 2024 SPR24/1412 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 March 11, 2024, Mr. Herman requested, “... copies of any and all records related to actions taken that resulted in discipline that deal with the following events involving massage therapists.” [1] Sexual misconduct (SX) [2] Inappropriate conduct with a patient or client (IT) [3] Patient abuse I am seeking records that reveal the details of the incidents and the final dispositions of the cases. This is for the period December 17, 2023 to the present. The Division responded on May 2, 2023 and May 8, 2024. Unsatisfied with the responses, Mr. Herman petitioned this office and this appeal, SPR24/1412, 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 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). 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. SPR24/1412 Page 2 May 23, 2024 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 May 2nd and May 8th Responses Upon review of the documents provided for the appeal, it appears the Division provided Mr. Herman with the responsive records by electronic means. Subsequently, on May 1, 2024 and May 2, 2024, Mr. Herman requested hard copies of the records. In its May 2, 2024 response, the Division stated, “[i]t is too many pages to mail. We can print them and leave them in the Welcome Center.” In its May 8, 2024 response, the Division opined, “MGL ch. 66A, s. 6A(d) states that the record access officer shall provide the public records to a requestor by electronic means. The Division provided you with the records in an electronic format, as we have many times previously. Thus, the Division has satisfied our obligations under the law. As a courtesy, I agreed to print the pages you are unable to print and leave them for you at the Welcome Center. If you would no longer like to pick them up, please let me know.” Based upon a telephone conversation between the Division and an attorney of the Public Records Division, this office was informed that the requested records were mailed to Mr. Herman on May 15, 2024. Conclusion Accordingly, this administrative appeal is now closed. Sincerely, Manza Arthur Supervisor of Records cc: Colman Herman