Debra Cartwright v. Board of Registration in Medicine (SPR 20252300)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 15, 2025 SPR25/2300 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 Debra Cartwright 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 August 1, 2025, Ms. Cartwright requested complaint records related to an identified individual and records related to a previous public records request that was made to the Board on January 31, 2023. The Board provided a response on August 6, 2025, providing a redacted record responsive to the request. Unsatisfied with the Board’s response, Ms. Cartwright petitioned this office and this appeal, SPR25/2300, was opened as a result. Subsequently, the Board provided a supplemental response on August 14, 2025. Status of Requestor In her appeal petition, Ms. Cartwright states that “I have identified discrepancies that strongly suggest I am directly implicated which would give me the right to be informed one way or the other.” 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, Ms. Cartwright’s status will play no role in a determination as to whether the record should be disclosed or redacted under the Public Records Law. 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 SPR25/2300 Page 2 August 15, 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. Current Appeal In her appeal petition, Ms. Cartwright states, “[d]etermine whether this structural complaint (ref: January 31, 2023 inquiry and February 13, 2023 BORIM response) is subject to patient access or disclosure in any form[.] If not, please advise what statutory exemptions are being applied and whether a redacted or indexed summary is permissible[.]” The Board’s August 6th and August 14th responses In its August 6, 2025 response, the Board stated, “it appears you have also made this request in the past and the Board responded and sent you the responsive records on March 4, 2025 (attached hereto).” In its August 14, 2025 response to this office, the Board provided a detailed timeline of the requests and responses between the parties. In pertinent part, the Board stated: January 31, 2023: BORIM received a public records request from a requestor at Tufts Medical Center stating, ‘[an identified individual] has indicated on her credentialing application that she has closed BORIM complaints. Please provide details of these complaints.’ February 13, 2023: BORIM sent this requestor a response indicating that there were no releasable records because at the time of the request there was only one responsive complaint, that complaint was based on a statutory report, and the Board had not issued a Statement of Allegations on the basis of the statutory

Tara Douglas, Esq SPR25/2300 Page 3 August 15, 2025 report. Accordingly, the records relating to the complaint were withheld pursuant to G.L. c. 4, § 7(26)(a) and G.L. c. 111, § 53B; G.L. c. 112, §§ 5A through 5I; and 243 CMR 1.02(8), 1.03(14), 2.13(2) through (4), and 2.14(2). Under these provisions, if the Board has not issued a Statement of Allegations based upon the statutory report, the statutory report and the records directly related to its review and investigation shall remain confidential. See 243 CMR 1.03(14)…. BORIM has produced all publicly releasable records regarding [an identified individual] to Ms. Cartwright and has satisfied all the requests made by Ms. Cartwright regarding this matter. 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, 154 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-546 (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. The regulation, 243 C.M.R. 1.03(14), cited by the Board provides in relevant part: Statutory Reports. The Complaint Committee, an investigator, and any of the Board’s units may also review and investigate any report filed, including self- reports pursuant to G. L. c. 111, § 53B, G. L. c. 112, §§ 5A through 5I, or 243 C.M.R. 2.00: Licensing and the Practice of Medicine and 3.00: The Establishment of and Participation in Qualified Patient Care Assessment Programs, pursuant to M.G.L. c. 112, § 5, and M.G.L. c. 111, § 203. If the Board does not issue a

Tara Douglas, Esq SPR25/2300 Page 4 August 15, 2025 Statement of Allegations based upon the statutory report, the statutory report and the records directly related to its review and investigation shall remain confidential. However, if such report and records are relevant to a resignation pursuant to 243 CMR 1.05(5), then they shall be treated like closed complaint files, under 243 CMR 1.02(8)(c) 1.; provided, however, that confidentiality of peer review documents is maintained in accordance with 243 CMR 1.02(8)(c)(4) and that confidentiality of documents filed under M.G.L. c. 111, § 53B is maintained to the extent required by law. 243 C.M.R. 1.03(14). In a telephone call between a staff attorney of the Public Records Division and the Board on August 14, 2025, the Board confirmed that the only record being withheld is a Statutory Report and that all other responsive records have been provided to Ms. Cartwright. In this case, where the Board has explained that the Statutory Report is the type of record contemplated in the regulation cited above, I find the Board has met its burden to withhold the requested Statutory Report under 243 C.M.R. 1.03(14), as it operates through Exemption (a) of the Public Records Law. Conclusion Accordingly, I will now consider this administrative appeal closed. If Ms. Cartwright is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth of Massachusetts. G. L. c. 66, § 10A(c) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Debra Cartwright