Elizabeth Koh v. Board of Registration in Medicine (SPR 20250136)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 29, 2025 SPR25/0136 Tara R. Douglas, Esq. Records Access Officer Board of Registration in Medicine 200 Harvard Mill Square, Suite 330 Wakefield, MA 01880 Dear Attorney Douglas: I have received the petition of Elizabeth Koh, of the Boston Globe, appealing the response 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 October 22, 2024, Ms. Koh requested: Any and all of the following records, during the time period between Sep. 11, 2023 through Oct. 10, 2023: - Emails to or from [a named individual], including but not limited to drafts, forwards, deleted messages - Logs, records, and/or any documents that include calls made or received on [the individual’s] cell phone or direct office line - Text messages written, received, or sent from [the individual’s] cell phone - Calendars for [the individual’s] or other documents that depict scheduled meetings, conferences, conversations, etc. In an email to the Board on October 29, 2024, Ms. Koh offered to narrow the scope of her request, asking “if BORIM would be able to provide an itemized time and cost estimate for how long it would take to produce the requested records if this time period for the emails search was narrowed to Sep. 23, 2023 through Oct. 1, 2023 inclusive.” The Board responded to the modified request on October 31, 2024, and again on November 13, 2024. Unsatisfied with the Board’s responses, Ms. Koh petitioned this office, and this appeal, SPR25/0136, 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 R. Douglas, Esq. SPR25/0136 Page 2 January 29, 2025 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 October 31st and November 13th Responses In its October 31, 2024 response, the Board states the following concerning the modified request: Using those new date limiters, the search results for the emails went from 3221 to 719. To avoid a fee, would you be agreeable to rolling biweekly productions, with the first production next Friday, November 8? I am still waiting to hear back on the phone records collection of records. On November 13, 2024, an attorney for the Board stated “it took longer than I anticipated for the data to be extracted for me to review. I’m working on looking at them now, is next Monday for the first production okay?” In her appeal petition, Ms. Koh states that “to date I have received no documents in response to the request.” 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:

Tara R. Douglas, Esq. SPR25/0136 Page 3 January 29, 2025 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). Where Ms. Koh submitted her modified request on October 29, 2024, and the Board has not provided responsive records, nor cited an exemption for withholding 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 responsive records. See G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). To the extent possible, the Board must provide responsive records on a rolling basis. Conclusion Accordingly, the Board is ordered to provide Ms. Koh 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: Elizabeth Koh