Weessam Dennaoui v. Department of Public Health (SPR 20242679)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 4, 2024 SPR24/2679 Helen Rush-Lloyd Records Access Officer Department of Public Health 250 Washington Street Boston, MA 02108 Dear Ms. Rush-Lloyd: I have received the petition of Weessam Dennaoui appealing the response of the Department of Public Health (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 20, 2024, Mr. Dennaoui requested the following: [1.] Copies of all voluntary agreements not to practice related to Board of Pharmacy complaints against individual licenses handled by RPh investigator [a named individual] and executed by board counsel… between December 1, 2023, and April 30, 2024. [2.] Summary Suspension - Docket No. PHA 2024-0071 [a.] Records of any legal opinions, meeting minutes, and discussions related to the necessity and justification of summary suspension, including the case presentation. [b.] Copies of Standard Operating Procedures (SOPs) followed during the investigation, complaint process, and summary suspension, if applicable. [c.] Internal communications (emails, memos, Teams messages) between board members, investigators, and legal counsel related to this case, which have not been shared with the licensee or their counsel . . . . [d.] Follow-up communications regarding the investigation of allegations post-summary suspension. [e.] Specific time and reasoning for the staff assignment change from investigation case INV10538 to formal complaint PHA 2024-0071, including internal communications or documentation explaining this decision. 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

Helen Rush-Lloyd SPR24/2679 Page 2 October 4, 2024 The Department provided a response on September 23, 2024. Unsatisfied with the Department’s response, Mr. Dennaoui petitioned this office and this appeal, SPR24/2679, 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). 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 Department’s September 23rd Response In its September 23, 2024 response, the Department provided records and cited Exemptions (a) and (c) of the Public Records Law to redact information. Additionally, the Department cited Exemption (f) of the Public Records Law and the attorney-client privilege to withhold additional records. Current appeal In his appeal, Mr. Dennaoui stated, “I appreciate the agency’s responsiveness to most of the items in my request. However, some records concerning internal communications between board members, investigators, and legal counsel were withheld, citing [Exemption (f)] and attorney-client privilege. I am writing to appeal this partial denial of my public records request… I respectfully request that the Supervisor of Records review this appeal and either order the release of the withheld records or require a more detailed and sufficient justification from the agency in compliance with public records law.” Where Mr. Dennaoui does not appear to be taking issue with the redactions under Exemptions (a) and (c), I find it unnecessary to opine on those matters.

Helen Rush-Lloyd SPR24/2679 Page 3 October 4, 2024 Exemption (f) Exemption (f) permits the withholding of: investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest. G. L. c. 4, § 7 (26)(f). A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 371 Mass. 59, 62 (1976). Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Att’y Gen., 52 Mass. App. Ct. 244, 248 (2001); Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 290 n.18 (1979). Exemption (f) invites a “case-by case consideration” of whether disclosure ‘would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” See Reinstein, 378 Mass. at 289-290. Under Exemption (f), the Department stated, “[i]nternal communications have been withheld from production because they are subject to [Exemption (f)], and therefore, are not subject to disclosure. Exemption (f) applies to investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” It is unclear how the records, in their entirety, can be withheld under Exemption (f). It is additionally uncertain from the Department’s response whether the record contains confidential investigative techniques that would be prejudicial to the ongoing investigation if disclosed. The Department did not provide any supporting information to demonstrate how disclosure of any segregable portion of the responsive records “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest[,]” as required under Exemption (f). See Reinstein, 378 Mass. at 289-90 (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). The Department must clarify these matters.

Helen Rush-Lloyd SPR24/2679 Page 4 October 4, 2024 Common law attorney-client privilege A records custodian claiming the attorney-client privilege under the Public Records Law has the burden of not only proving the existence of an attorney-client relationship, but also (1) that the communications were received from a client during the course of the client’s search for legal advice from the attorney in his or her capacity as such; (2) that the communications were made in confidence; and (3) that the privilege as to these communications has not been waived. See Suffolk Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444, 450 n.9 (2017); see also Hanover Ins. Co. v. Rapa & Jepsen Ins. Servs., 449 Mass. 609, 619 (2007) (stating that the party seeking the attorney-client privilege has the burden to show the privilege applies). Records custodians seeking to invoke the common law attorney-client privilege “are required to produce detailed indices to support their claims of privilege.” Suffolk, 449 Mass. at 460. Pursuant to the Public Records Law, in assessing whether a records custodian has properly withheld records based on the claim of attorney-client privilege the Supervisor of Records “shall require, as part of the decision making process, that the agency or municipality provide a detailed description of the record, including the names of the author and recipients, the date, the substance of such record, and the grounds upon which the attorney-client privilege is being claimed.” G. L. c. 66, § 10A(a). Under the attorney-client privilege, in regards to Part C of Item 2, the Department stated, “[a]dditionally, internal communications between BHPL attorneys and staff have been withheld from production because they are subject to an exemption pursuant to [the attorney-client privilege].” I find that the Department has not satisfied the three-part test set out in the Suffolk case. See Suffolk, 449 Mass. at 460. Specifically, the Department must clarify that the communications were received from a client during the course of the client’s search for legal advice from the attorney in his or her capacity as such and that the communications were made in confidence and that the privilege as to these communications has not been waived. Further, the Department is advised that G. L. c. 66, § 10A(a) requires that a records custodian must provide a privilege log in accordance with the Public Records Law. The log must include the date, the names of the author and recipients, the substance of the record, and the grounds upon which the attorney-client privilege is being claimed. Additional Records Regarding Item 1 of the request, the Department stated, “[a] search of our system for Voluntary Agreements Not Practice during the timeline you requested under item #1 produced one agreement which is included. We are not able to search by the investigator or Board Counsel involved in the case, however. We have no responsive documents regarding timelines or dates. An agency is not required to create a new record in order to respond to a public record request.”

Helen Rush-Lloyd SPR24/2679 Page 5 October 4, 2024 In his appeal, Mr. Dennaoui states, “[w]hile G.L. c. 66, § 6A(d) clarifies that agencies are not required to create new documents in response to a public records request, the agency must provide sufficient justification for withholding the requested materials from release for public inspection. The explanation provided does not meet the standard required by public records law.” Based on the above, it is unclear whether the Department possesses additional records responsive to Item 1 of the request. If the Department does possess additional responsive records, it must either provide the records, or cite an exemption to the Public Records Law, and explain with specificity how such an exemption applies to withhold or redact the records. See G. L. c. 66, § 10(b)(iv) (a 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”). 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). The Department must clarify this matter. Conclusion Accordingly, the Department is ordered to provide Mr. Dennaoui 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: Weessam Dennaoui Charlena Christiansen