Weessam Dennaoui v. Department of Public Health (SPR 20243198)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 11, 2024 SPR24/3198 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. On September 17, 2024, Mr. Dennaoui clarified his request and stated, “I am refining my request to seek communications (emails, Teams messages, memoranda) between triage 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 SPR24/3198 Page 2 December 11, 2024 committee members, OPP administrative staff, OPP investigators, investigations supervisor, and any non-exempt communication with board counsel, regarding INV-10538, case 2024-1388, or formal complaint PHA-2024-0071, for the periods 03/23/24 to 04/10/2024 and 04/24/24 to 05/03/2024.” Prior Appeal This request was the subject of a prior appeal. See SPR24/2679 Determination of the Supervisor of Records (October 4, 2024). In my October 4th determination, I found that the Department had not met its burden to withhold records under Exemption (f) of the Public Records Law and the attorney-client privilege. Additionally, I found that it was unclear whether the Department possesses additional records responsive to Item 1 of the request. The Department provided a response on November 8, 2024. Unsatisfied with the Department’s response, Mr. Dennaoui petitioned this office and this appeal, SPR24/3198, 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. 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 Department’s November 8th Response In its November 8, 2024 response, the Department further explained its reasoning for citing Exemption (f) of the Public Records Law and the attorney-client privilege to withhold records. In a prior response, the Department provided records and cited Exemptions (a) and (c) of the Public Records Law to redact information. Current appeal In his appeal, Mr. Dennaoui states the following:

Helen Rush-Lloyd SPR24/3198 Page 3 December 11, 2024 By simultaneously invoking Exemption (f) for records it claims do not exist, DPH creates an irreconcilable inconsistency that undermines its position. Public records law requires agencies to identify and assess specific records before applying for an exemption. If no records exist, Exemption (f) cannot and should not be invoked… DPH’s inconsistent statements make it impossible to determine whether responsive documents exist or if Exemption (f) has been properly applied… DPH has not cited any precedent extending Exemption (f) to investigations conducted on behalf of state licensing agencies and has failed to demonstrate how disclosure would prejudice law enforcement efforts as required by [Exemption (f)]… … The privilege log does not provide sufficient detail about the substance of the communications or explain how privilege applies to each record… DPH did not clarify whether privilege was waived for communications involving non-attorney staff or third parties… Titles such as “Dennaoui - Summary Suspension” and “Service of VANP” suggest procedural or administrative content, which is not protected under privilege… Although the privilege log includes names of senders, recipients, individuals copied, and email titles, it fails to demonstrate that these communications qualify for attorney-client privilege under Massachusetts law… … I acknowledge the Supervisor’s October 4, 2024, determination but respectfully request a supplemental determination based on DPH’s updated response. This determination is necessary to address unresolved issues in the Department’s submission and to evaluate the adequacy of its justifications, particularly regarding Exemption (f) and attorney-client privilege. 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.

Helen Rush-Lloyd SPR24/3198 Page 4 December 11, 2024 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 the following: At the outset, it is important to note that the records sought in this matter pertain to an active and ongoing investigation… based on the information that has been publicly disclosed – the investigation involves an unlawful diversion of Schedule II and VI Controlled Substances, as well as unauthorized pharmacy practice. Under these circumstances, the Department’s active investigation would be greatly prejudiced by the disclosure of internal communications that discuss, among many things, the ongoing activities of the investigation to the target of said investigation… Furthermore, while the Department does not believe there is legal support for [Mr. Dennaoui’s] position that the application of Exemption (f) is limited to law enforcement or public safety, the factual circumstances surrounding this investigation – namely, the diversion of federally scheduled controlled substances – clearly fall within the realm of the BPHL’s public health and safety focused prerogative. With that said, the Department has not identified additional internal communications outside of those that have already been shared with [Mr. Dennaoui] or [his] attorney that are responsive to your September 17, 2024 modified request. The Department did not identify the records in its possession that it intends to withhold from disclosure under Exemption (f). To deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3)(c)(4). Where the Department stated that it “has not identified additional internal communications outside of those that have already been shared with [Mr. Dennaoui][,]” it is unclear what records are being withheld under Exemption (f). Therefore, the Department must identify what type of records it has in its possession that the Department is withholding under Exemption (f). Further, 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

Helen Rush-Lloyd SPR24/3198 Page 5 December 11, 2024 portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). The Department must clarify these matters. 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, the Department stated the following: Based on your September 17, 2024 modified request, the Department has identified thirty-seven (36) potentially responsive records. The Department has withheld these records because they have been identified as privileged communications between BPHL’s attorneys and DPH employees seeking and/or receiving legal advice, assistance and/or guidance regarding an active Board of Registration in Pharmacy investigation and therefore, are protected under the normal rules of the attorney-client privilege… The enclosed Privilege Index provides details about these documents... These documents constitute direct attorney-client communications or reflect these communications without destroying the underlying 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 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. Although the

Helen Rush-Lloyd SPR24/3198 Page 6 December 11, 2024 Department provided the date and the names of the author and recipients, it is uncertain what the substance of the records are and on what grounds the attorney-client privilege is being claimed. 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