Mark Adams v. Board of Registration in Medicine (SPR 20252185)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 6, 2025 SPR25/2185 Tara Douglas, Esq. Assistant General Counsel Board of Registration in Medicine 200 Harvard Mill Square, Suite 330 Wakefield, MA 01880 Dear Attorney Douglas: I have received the petition of Mark Adams 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 May 31, 2025, Mr. Adams requested: [1] All emails and communications of any kind between the Board of Registry of Medicine (BORIM) and any of their agents or representatives and the Massachusetts Forensic Science Board in regards to their dealings with [identified individuals]. . .[;] [2] All emails and communications of any kind between [identified individuals] and anyone of any nature in regards to the Adams matter. This should include communications with the Board of Forensic Science and any of their board members[;] [3] Copies of all reports that were solicited by the BORIM regarding the Adams complaint, including any done by [an identified individual] in a professional capacity or as a board member. Any communications, notes, etc. in regards to this report as well[;] [4] All emails, communications of any sort by anyone on the Massachusetts Forensic Science Board in regards to anything to do with the Adams matter[;] [5] All emails, communications of any sort by anyone at the Executive Office of Public Safety and Security in any nature concerning, about either Adams, or anything about either the investigation at BORIM or the Forensic Science Board. 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 Douglas, Esq SPR25/2185 Page 2 August 6, 2025 On June 1, 2025, Mr. Adams supplemented his May 31st request seeking “[c]opies of all emails, notes, communications, reports, etc. between the BORIM, to include [identified individuals], either to or from.” Previous Appeal This request was the subject of a previous appeal. See SPR25/1817 Determination of the Supervisor of Records (July 8, 2025). In my July 8th determination, I ordered the Board to provide Mr. Adams with a response to his request. The Board provided a response on July 23, 2025. Unsatisfied with the Board’s response, Mr. Adams petitioned this office and this appeal, SPR25/2185, was opened as a result. Status of Requestor In his appeal petition, Mr. Adams states that “[a]s a direct party, nothing should be kept from me as well[.]” Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Mr. Adams’ status will play no role in a determination as to whether the record should be disclosed or redacted under the Public Records Law. 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.

Tara Douglas, Esq SPR25/2185 Page 3 August 6, 2025 Current Appeal In his appeal petition, Mr. Adams states: It has been answered, some documents have been produced, many withheld under attorney/client privilege as well as other reasons that I do not believe are valid…. For example, multiple emails were redacted/withheld as ‘attorney client privilege’ … On top of this fact, just because someone is an attorney does not necessarily mean there is a privilege in place. There could be many reasons why this would not be in play here, it is not up to me to show why…. The investigation is closed and any and all documents and reports of any nature should be produced immediately. As a direct party, nothing should be kept from me as well[.] I specifically also requested a copy of a report put together for the BORIM by [an identified individual], a member of the Forensic Science Board. This has not been produced despite being requested[.] The Board’s July 23rd response In its July 23, 2025 response, the Board stated, “[r]ecords have been either withheld or contain redactions as follows: Attorney-client privileged communications … [and] Attorney work product … The Board now considers this matter closed.” 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., Inc. v. Div. of Capital Asset Mmgt., 449 Mass. 444, 450 n.9 (2007); see also Hanover Ins. Co. v. Rapo & 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 not inspect the record but 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).

Tara Douglas, Esq SPR25/2185 Page 4 August 6, 2025 Withheld records Based on its July 23rd response, I find the Board has not met its burden in responding to this request. Specifically, the Board must provide an index comprised of a detailed description of each record withheld pursuant to the attorney-client privilege, including the names of the author and recipients, the date, the substance of each record, and the grounds upon which the privilege is being claimed. See G. L. c. 66, § 10A(a). Further, the Board must clarify whether the communications were made during the client’s search for legal advice from an attorney in his or her capacity as such, whether the communications were made in confidence, and whether the privilege as to the communications has been waived. Further, the Board did not identify the records in its possession that it withheld from disclosure. To deny access to a record or portion of 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). Consequently, the Board must identify the records in its possession that it withheld under the attorney-client privilege. Redacted records With respect to the redacted records, while portions of the responsive records have been redacted, the Board has left intact the names of the authors and recipients, as well as the dates. Although the Board has provided some information regarding these records, I find that in accordance with G. L. c. 66, § 10A(a), the Board must provide additional information regarding “the substance of such record[s], and the grounds upon which the attorney-client privilege is being claimed.” Further, the Board must clarify whether the communications were made in confidence, and that the privilege as to the communications has not been waived. Additional records The Board is advised that the duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). Additionally, under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). However, in accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). Based on the information provided in Mr. Adams’ appeal petition, it is unclear whether the Board possesses additional responsive records. Specifically, I find the Board must clarify whether it possesses “a copy of a report put together for the BORIM by [an identified individual], a member of the Forensic Science Board[.]” The Board must clarify this.

Tara Douglas, Esq SPR25/2185 Page 5 August 6, 2025 Conclusion Accordingly, the Board is ordered to provide Mr. Adams 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: Mark Adams