Keith Malarick v. Division of Occupational Licensure (SPR 20251478)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 10, 2025 SPR25/1478 Jean McCarthy Records Access Officer Division of Occupational Licensure 1000 Washington Street, Suite 710 Boston, MA 02118 Dear Ms. McCarthy: I have received the petition of Keith Malarick appealing the response of the Division of Occupational Licensure (Division/DOL) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 6, 2025, Mr. Malarick requested “records from the Board of Registration in Veterinary Medicine, including policies related to” [1] how public complaints are processed, [2] how and when complainants are notified of board hearings, [3] how conflict of interest and recusals are handled [and] [4] board member eligibility criteria (particularly for the public member seat), and any records related to the appointment of an “Acting Executive Director. . . .” On May 20, 2025, the Division provided a response to Mr. Malarick. Unsatisfied with the response, Mr. Malarick petitioned this office, and this appeal, SPR25/1478, 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. 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

Jean McCarthy SPR25/1478 Page 2 June 10, 2025 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 Division’s May 20th Response In its May 20, 2025 response, the Division cites Exemptions (b) and (f) of the Public Records Law to withhold the requested records. Current Appeal In his petition, Mr. Malarick asserts, “... this request relates directly to potential conflicts of interest between sitting board members and veterinarians under investigation — specifically, shared academic history at Tufts and the influence of a public board member with a substantial regulatory background. These are matters of public trust, not internal HR policy.” Exemption (b) Exemption (b) permits the withholding of: records that are related solely to internal personnel rules and practices of the government unit, provided however, that such records shall be withheld only to the extent that proper performance of necessary government functions requires such withholding. G. L. C. 4, § 7(26)(b). There are no authoritative Massachusetts decisions interpreting Exemption (b). The general purpose of the cognate federal exemption is to relieve agencies of the burden of assembling and maintaining for public inspection materials in which the public cannot reasonably be expected to have an interest. See Dep’t of the Air Force v. Rose, 425 U.S. 352, 362-70 (1976) (interpreting the federal Freedom of Information Act, which provides an exemption for records which are “related solely to the internal personnel rules and practices of an agency”); see also Globe Newspaper Co. v. Boston Ret. Bd., 388 Mass. 427,432 (1983) (Massachusetts Public Records Law modeled on federal Freedom of lnformation Act). In its response, the Department states, “... the documents related to paragraph 1 above are exempted from disclosure under Exemption (b), under sub-clause (b) of clause 26 of G.L. c. 4, §

Jean McCarthy SPR25/1478 Page 3 June 10, 2025 7, which, exempts from disclosure documents ‘related solely to internal personnel rules and practices of the government unit, provided however, that such records shall be withheld only to the extent that proper performance of necessary governmental functions requires such withholding’. The documents you seek relate to the internal operations of the DOL’s Office of Investigations. The documents are related to personnel rules and practices of the employees assigned to the Office of Investigations.” Based on the Division’s response, although the Division states that the records relate to the internal operations of its office of investigation, the Division did not provide supporting information to demonstrate how disclosure of this information would hinder the proper performance of the Division’s necessary government function. The Division must clarify this matter. 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 289-90. In its response, the Division stated that, “[t]he documents you seek relate to the internal processes of how the DOL investigates complaints made by the public. Disclosure of these documents would prevent the DOL of conducting independent and thorough investigations because the public would have a blueprint on how these investigations are handled internally.” Upon review, it is unclear how the records in their entirety can be withheld under Exemption (f). It is unclear from the Division’s response whether the records contain confidential investigative techniques that would be prejudicial to any ongoing investigation if

Jean McCarthy SPR25/1478 Page 4 June 10, 2025 disclosed. The Division did not demonstrate how disclosure of any 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). Further, based on the Division’s response, it is unclear what type of records it possesses that it is withholding from disclosure pursuant to Exemptions (b) and (f) of the Public Records Law. G. L. c. 66, § 10(b)(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 . . .”). Therefore, the Division must identify the records it has in its possession that it is withholding. Further, it is unclear if the Division could provide segregable portions of the responsive records. See Reinstein, 378 Mass. 281, 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). Conclusion Accordingly, the Division is ordered to provide Mr. Malarick 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: Keith Malarick