Jonathon Ferreira v. Division of Occupational Licensure (SPR 20241729)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 25, 2024 SPR24/1729 Jean McCarthy Records Access Officer Division of Occupational Licensure 1000 Washington Street, Suite 710 Boston, MA 02118 Dear Ms. McCarthy: I have received the petition of Jonathon R. Ferreira, of Oliveira Family Funeral Homes & Cremation Service, 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 May 22, 2024, Mr. Ferreira requested: [t]he [Division’s Board of Registration in Embalming and Funeral Directing conducted Closed Investigative Conferences, under G. L. c. 112, § 65C, regarding complaint number 2023-000106-IT-ENF. Pursuant to G. L. c. 112, § 65C, a licensee shall have access to records of any meetings concerning the licensee. Therefore, as these meeting were recorded and as the licensee in the above mentioned case, I request the recordings of the corresponding Closed Investigative Conferences: April 18, 2023, May 16, 2023, [and,] November 21, 2023. On May 28, 2024, the Division provided a response to Mr. Ferreira. Unsatisfied with the response, Mr. Ferreira petitioned this office, and this appeal, SPR24/1729, 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

Jean McCarthy SPR24/1729 Page 2 June 25, 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 28th Response In its May 28, 2024 response, the Division states, “[n]o audio recordings exist for closed investigative conferences. G. L. c. 112, s. 65 states that investigative conferences held to discuss a case prior to issuance of an Order to Show Cause or to discuss a settlement are not considered open meetings under G. L. c. 30A. All documents regarding your case were previously provided in February 2024, and no other records exist related to the case. All meeting minutes can be found on our website: https://www.mass.gov/info-details/2023-embalming-and-funeral- directing-meeting-schedule...” Current Appeal In his petition, Mr. Ferreira asserts, “… [i]t is clearly indicated on Board Meeting Agendas (Board) that the meetings are recorded over Zoom. After speaking with someone personally familiar with Board operations, I argue that it is highly unlikely that Closed Investigative Conferences were not recorded. While [the Division] asserts that, under the law, the meeting is not considered public, the full text of the statute is below”: Section 65C. Meetings of the boards held for the purpose of conducting investigative conferences prior to the issuance of an order to show cause or for purposes of discussing the terms of a negotiated settlement of a complaint against a licensee shall not be considered open meetings within the meaning of section 11A ½ of chapter 30A, but a licensee shall have access to records of any meetings concerning the licensee as may be necessary for the defense of his license at an adjudicatory proceeding. I contend that the clear, plain, and unambiguous carve out in the statute for licensees demonstrates that while the records may be withheld from the general public, they must be made available to the licensee in the matter, which I am … I would argue that it is quite fanciful to believe that an administrative agency managed to conduct an investigation, spanning several months and several hundred documents, without producing documents, such as work papers, meeting minutes, recording, etc. I would contend that it is not possible to conduct a

Jean McCarthy SPR24/1729 Page 3 June 25, 2024 thorough and proper investigation of this scope and magnitude without producing written or recorded records of meaningful substance… Purpose of request; identity of requestor Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Mr. Ferreira’s purpose in making the request has no bearing on the public status of any existing responsive records. Although the Division states that “[n]o audio recordings exist for closed investigative conferences” and the Division has previously provided documents in February 2024, based on Mr. Ferreira’s June 10th appeal, the Division must clarify whether any of the meetings were recorded over zoom for the requested Investigative Conferences on April 18, 2023, May 16, 2023, and November 21, 2023. The Division must clarify this matter. Conclusion Accordingly, the Division is ordered to provide Mr. Ferreira 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: Jonathon R. Ferreira