Mark Adams v. Board of Registration in Medicine (SPR 20241808)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 2, 2024 SPR24/1808 Tara R. Douglas, Esq. Assistant General Counsel Board of Registration in Medicine 178 Albion Street, Suite 330 Wakefield, MA 01880 Dear Attorney Douglas: I have received the petition of Mark Adams appealing the response of the Board of Registration in Medicine (Board) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 24, 2024, Mr. Adams requested, “a copy of the physician’s responses to our supplemental complaint as well as the report/findings of the state’s expert. This should include any communications by the physicians, their agents, anyone at the state speaking on their behalf, etc…” The Board provided a response on June 3, 2024. Unsatisfied with the Board’s response, Mr. Adams petitioned this office and this appeal, SPR24/1808, 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). 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(d)(iv) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based…”); 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). 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

Tara R. Douglas, Esq. SPR24/1808 Page 2 July 2, 2024 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 Board’s June 3rd Response In its June 3, 2024 response, the Board produced some records responsive to Mr. Adams’ request and cited Exemptions (a) and (f) of the Public Records Law to withhold “[t]he Disciplinary Unit file corresponding to [specified docket numbers]…” Current appeal In his appeal, Mr. Adams states, “I specifically asked for a copy of the Commonwealths (states) expert opinion report that they received in regards to our son. Also any emails, correspondences, agreements etc pertaining to it. Based on state law I am clearly entitled to this and as they have already acknowledged, as his legal court approved representative and next of kin, I am entitled to it … [the Board] didn’t produce the expert report … they never provided ... the disciplinary file…” Status of the requestor; reason for the request 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 G. L. c. 66, § 10(a); see also Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Therefore, Mr. Adams’ status as a representative to the party that is subject to the records shall have no bearing on the public nature of the record. 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). 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).

Tara R. Douglas, Esq. SPR24/1808 Page 3 July 2, 2024 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. When citing Exemption (a) to withhold portions of the records, the Board states: Disciplinary Unit files, including records of the Disciplinary Unit’s investigation of any disciplinary matter (see G.L. c. 4, § 7(26)(a); see also G.L. c. 112, § 5, and 243 CMR [1.02(8)(2)](c)(2) and (5); see also Determinations of the Supervisor of Public Records, Dockets No. SPR17/1073, SPR18/179. The statute and regulations provide in relevant parts: The board, including but not limited to the data repository and the disciplinary unit, shall keep confidential any complaint, report, record or other information received or kept by the board in connection with an investigation conducted by the board pursuant to this section, or otherwise obtained by or retained in the data repository; provided, however, that, except to the extent that disclosures of records or other information may be restricted as otherwise provided by law, or by the board’s regulations, investigative records or information of the board shall not be kept confidential after the board has disposed of the matter under investigation…. G. L. c. 112, § 5. Disciplinary Unit files, which contain portions of complaint files (and related confidential files) as well as papers related to adjudicatory proceedings and attorney work product, are not public records and are confidential. 243 C.M.R. 1.02(8)(2). Where the above statute and regulations contemplate the confidentiality of “. . . any complaint, report, record or other information received or kept by the board in connection with an investigation[,]” and records maintained in the Board’s Data Repository, I find the Board has met its burden to withhold the records under Exemption (a) of the Public Records Law. As such, I decline to opine on the claim of Exemption (f) of the Public Records Law to withhold responsive records.

Tara R. Douglas, Esq. SPR24/1808 Page 4 July 2, 2024 Conclusion Accordingly, I will now consider this administrative appeal closed. If Mr. Adams is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth of Massachusetts. G. L. c. 66, § 10A(c) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Mark Adams