John T. Zogby v. Office of the Attorney General (SPR 20243153)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 5, 2024 SPR24/3153 Hanne Rush, Esq. Assistant Attorney General Records Access Officer Office of the Attorney General One Ashburton Place, 20th Floor Boston, MA 02108 Dear Attorney Rush: I have received the petition of John T. Zogby, Esq., of the Law Office of John T. Zogby, appealing the response of the Office of the Attorney General (AGO) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 15, 2024, Attorney Zogby requested, “[c]opies of any and all letters, correspondence, reports or other documents related to, or referred to, in the attached Complaint Processing and Review Summary regarding Marlborough Hills Rehabilitation and Health Care Center.” The AGO responded on November 20, 2024. Unsatisfied with the response, Attorney Zogby petitioned this office and this appeal, SPR24/3153, 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(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Att’y 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. 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

Hanne Rush, Esq. SPR24/3153 Page 2 December 5, 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 AGO’s November 20th response In the AGO’s November 20, 2024 response, the AGO claimed Exemption (a) of the Public Records Law to withhold the records in their entirety. Current appeal In his appeal, Attorney Zogby asserts, “[t]he Attorney General’s response is in violation of the public records law including but not limited to G.L. c. 111, § 72I which states in pertinent part ‘[t]he patient or resident or counsel therefor, the reporting person or agency, the appropriate professional board of registration or a social worker assigned to the case may, upon written request and the approval of the commissioner, receive a copy of the department’s written report’.” 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, 154 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-546 (1977). 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. In its response, the AGO cited, G. L. c. 111, § 72I, which provides in pertinent part:

Hanne Rush, Esq. SPR24/3153 Page 3 December 5, 2024 The department shall, subject to appropriation, maintain a file of the written reports prepared pursuant to sections 72G and 72H. The report submitted by the mandatory or nonmandatory reporter to the department and the report prepared by the department following its investigation shall be confidential. The patient or resident or counsel therefor, the reporting person or agency, the appropriate professional board of registration or a social worker assigned to the case may, upon written request and the approval of the commissioner, receive a copy of the department’s written report. The department’s written report shall not be made available to any person other than those authorized herein without the written, informed consent of the patient or resident or the written approval of the commissioner or an order of a court of competent jurisdiction. The reports prepared by the department shall contain no identifying information relating to a patient or resident. A person who causes any information which is contained in the department’s files maintained pursuant to section 72I to be released without authorization to persons or agencies other than those specified in this section shall be punished by a fine of not more than $1,000 or by imprisonment for not more than two and one-half years, or both such fine and imprisonment. In its response, the AGO asserted that “... [the AGO is] withholding records that may be responsive to your request in accordance with G.L. c. 4, § 7, cl. 26 as they constitute: (a) information specifically or by necessary implication exempted from disclosure by statute, G.L. c. 111, § 72I (confidential Department of Public Health reports) ...” Based on the AGO’s November 20th response, and as the records are restricted from disclosure in their entirety by the Legislature under G. L. c. 111, § 72I, as it operates through Exemption (a), I find the AGO has met its burden in responding to this request under the Public Records Law. See G. L. c. 111, § 72I (providing that these reports “shall be confidential”). Greater Right of Access to the Records Where the statute lists authorized persons that may have access to the responsive records, Attorney Zogby may have a right of access to the responsive records outside the Public Records Law. This office encourages Attorney Zogby and the AGO to communicate directly to determine if there is another means affording Attorney Zogby a greater right of access to the responsive records. Conclusion Accordingly, I will consider this administrative appeal closed.

Hanne Rush, Esq. SPR24/3153 Page 4 December 5, 2024 Sincerely, Manza Arthur Supervisor of Records cc: John T. Zobgy, Esq.