Pat Nelson v. Board of Registration in Medicine (SPR 20251822)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 9, 2025 SPR25/1822 Tara R. Douglas, Esq. Assistant General Counsel Board of Registration in Medicine 200 Harvard Mill Square Wakefield, MA 01880 Dear Attorney Douglas: I have received the petition of Pat Nelson (requestor) 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 June 18, 2025, the requestor sought “…all the documents in… conplaint file number Complaint # PH43149 [including] all correspondence and emails[.]” The Board responded on June 25, 2025. Unsatisfied with the Board’s response, the requestor petitioned this office and this appeal, SPR25/1822, 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. 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. SPR25/1822 Page 2 July 9, 2025 The Board’s June 25th Response In its June 25, 2025 response, the Board provided eight pages of redacted responsive records and withheld other identified categories of records. The Board cited numerous statutes as they operate through Exemption (a), as well as Exemption (c) of the Public Records Law, in support of withholding and redacting the responsive records. Current Appeal In the appeal petition, the requestor stated, “I’m appealing this response as it was overly redacted. Court case documents are online now so why are they redacting that info? The public owns the public records and they are not secretive.” The requestor did not object to the Board’s withholding of additional responsive records. 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, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (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. Under Exemption (a), the Board stated: Complainant home address [has been redacted] because it is data relating to a specifically named individual. This information contains intimate details of a highly personal nature, and its disclosure may constitute an unwarranted invasion

Tara R. Douglas, Esq. SPR25/1822 Page 3 July 9, 2025 of personal privacy. The individuals’ privacy interests outweigh the public’s interest in disclosure. (see G.L. c. 4, § 7(26)(a) and (c); see also G.L. c. 66A, § 2; see also G.L. c. 93H; see also Board Policy 98-02). Based on the Board’s response, I find the Board has not met its burden to redact the home address of a complainant under the cited statutes and Exemption (a) of the Public Records Law. It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold or redact a requested record. 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 is based…”); 950 C.M.R. 32.06(3). In this instance, the Board did not explain with specificity how the home address of a complainant is “specifically or by necessary implication exempted from disclosure by statute.” G. L. c. 4, § 7(26)(a). The Board must clarify this matter. Exemption (c) Exemption (c) permits the withholding of: personnel and medical files or information and any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy; provided, however, that this subclause shall not apply to records related to a law enforcement misconduct investigation. G. L. c. 4, § 7(26)(c). Analysis under Exemption (c) is subjective in nature and requires a balancing of the public’s right to know against the relevant privacy interests at stake. Torres v. Att’y Gen., 391 Mass. 1, 9 (1984); Att’y Gen. v. Assistant Comm’r of Real Prop. Dep’t, 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case-by-case basis. Medical information that is of a personal nature and relates to a specifically named individual may be exempt from disclosure. Brogan v. School Comm. of Westport, 401 Mass. 306,308 (1987); Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 438 (1983). Generally, medical information is sufficiently personal to warrant exemption. Globe Newspaper Co., 338 Mass. at 432-34. There is a strong public policy in Massachusetts that favors confidentiality as to medical data about a person’s body. Globe Newspaper Co. v. Chief Med. Exam’r, 404 Mass. 132, 135 (1987). This exemption does not protect all data relating to specifically named individuals. Rather, there are factors to consider when assessing the weight of the privacy interest at stake: (1) whether disclosure would result in personal embarrassment to an individual of normal sensibilities; (2) whether the materials sought contain intimate details of a highly personal nature; and (3) whether the same information is available from other sources. See People for the Ethical Treatment of Animals (PETA) v. Dep’t of Agric. Res., 477 Mass. 280, 292 (2017).

Tara R. Douglas, Esq. SPR25/1822 Page 4 July 9, 2025 The types of personal information which this exemption is designed to protect includes: marital status, paternity, substance abuse, government assistance, family disputes and reputation. Id. at 292 n.13; see also Doe v. Registrar of Motor Vehicles, 26 Mass. App. Ct. 415, 427 (1988) (holding that a motor vehicle licensee has a privacy interest in disclosure of his social security number). This exemption requires a balancing test, which provides that where the public interest in obtaining the requested information substantially outweighs the seriousness of any invasion of privacy, the private interest in preventing disclosure must yield. PETA, 477 Mass. at 291. The public has a recognized interest in knowing whether public servants are carrying out their duties in a law-abiding and efficient manner. Id. at 292. In the Board’s response under Exemption (c), the Board stated: Details of the complainant’s and [details and records of the patient’s] personal life, health conditions and treatment were redacted as these constitute personal data and medical information that is exempt from disclosure pursuant to G.L. c. 4, § 7(26)(c)… Even if this information was not categorically exempt, the Board withholds these records under Exemption (c)’s general privacy protections, as the information is of a highly personal nature, containing specific details which may identify individuals, and release of such information would constitute an unwarranted invasion of an individual’s privacy interests. The individuals’ privacy interests outweigh the public’s interest in disclosure… Complainant home address [has been redacted] because it is data relating to a specifically named individual. This information contains intimate details of a highly personal nature, and its disclosure may constitute an unwarranted invasion of personal privacy. The individuals’ privacy interests outweigh the public’s interest in disclosure. (see G.L. c. 4, § 7(26)(a) and (c); see also G.L. c. 66A, § 2; see also G.L. c. 93H; see also Board Policy 98-02). To the extent that the responsive records contain the medical information of a specifically identified individual, I find that the Board may withhold such portions under Exemption (c). However, the Board has not sufficiently established how the additionally withheld “personal data” and the complainant’s home address constitute intimate details of highly personal nature, nor that disclosure thereof would result in personal embarrassment to an individual of normal sensibilities. Further, it not clear whether this information is available from other sources. PETA, 477 Mass. at 292. The Board must also provide additional information with respect to the balancing test which examines whether the public interest in obtaining the requested information outweighs the seriousness of any invasion of privacy. Conclusion Accordingly, the Board is ordered to provide the requestor with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations

Tara R. Douglas, Esq. SPR25/1822 Page 5 July 9, 2025 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. The requestor may appeal the substantive nature of the Board’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Pat Nelson