Colman Herman v. Board of Registration in Medicine (SPR 20241908)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 18, 2024 SPR24/1908 Tara 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 Colman Herman appealing the responses of the Board of Registration in Medicine (Board) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 4, 2024, Mr. Herman requested the following: [C]opies of any and all disciplinary records that deal with sexual misconduct, sexual harassment, boundary violations, boundary crossings, and/or like involving physicians. I am seeking records that reveal the details of the incidents and the dispositions of the cases. This is for the period January 1, 2020 to the present. On May 9, 2024, Mr. Herman clarified that he seeks only “disciplinary actions” for “just sexual ... boundary records.” Previous Appeal This request was the subject of a previous appeal. See SPR24/1816 Determination of the Supervisor of Records (July 3, 2024). In my July 3rd determination, I closed SPR24/1816 in light of the Board providing supplemental responses to Mr. Herman on June 24 and June 25, 2024. Unsatisfied with the Board’s responses, Mr. Herman petitioned this office, and this appeal, SPR24/1908, 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

Tara Douglas, Esq. SPR24/1908 Page 2 July 18, 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 Board’s June 24th and June 25th Responses In its June 24 and June 25, 2024 responses, the Board provides numerous records. Additionally, the Board states that “[t]his concludes the 2020 action documents” and that it is “presently working on the remaining years requested.” In his appeal petition, Mr. Herman contends that “[o]n June 24, 2024 and June 25, 2024, [the Board] produced records for the year 2020, but not for the remaining years of 2021 to May 4, 2024.” Timeframe for Providing Records G. L. c. 66, § 10(b) provides, in pertinent part, that if the magnitude or difficulty of a request unduly burdens the other responsibilities of the agency or municipality such that the agency or municipality cannot provide records within 10 business days, the agency or municipality must inform the requestor in writing within 10 business days. With respect to the timeframe to produce responsive records, the written response shall: identify a reasonable timeframe in which the agency or municipality shall produce the public records sought; provided, that for an agency, the timeframe shall not exceed 15 business days following the initial receipt of the request for public records ... and provided further, that the requestor may voluntarily agree to a response date beyond the timeframes set forth herein. G. L. c. 66, § 10(b)(vi).

Tara Douglas, Esq. SPR24/1908 Page 3 July 18, 2024 Where Mr. Herman submitted his request on May 4, 2024, and the Board has not completed providing the responsive records, nor cited an exemption for withholding the remaining records, I find the Board has not met its burden in responding to the request in accordance with G. L. c. 66, § 10(b). Consequently, the Board must provide an estimated date as to when it intends to complete the search and provide the remaining responsive records. See G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). To the extent possible, the Board must continue to provide responsive records on a rolling basis. Conclusion Accordingly, the Board is ordered to provide Mr. Herman 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: Colman Herman