Weessam Dennaoui v. Department of Public Health (SPR 20252346)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 25, 2025 SPR25/2346 Helen Rush-Lloyd Records Access Officer Department of Public Health Bureau of Health Professions Licensure 250 Washington Street, 3rd Floor Boston, MA 02108 Dear Ms. Rush-Lloyd: I have received the petition of Weessam Dennaoui appealing the response of the Department of Public Health (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 10, 2025, following an email exchange with the Department, Mr. Dennaoui requested the following: 1. Emails Sent or Received (Mass.gov Accounts) Please provide all emails sent to or received from the following Mass.gov email addresses on the dates specified below, including full emails with any applicable attachments: • [a specified email address]: April 24, 2024; May 9, 2024 • [a specified email address]: April 29, 2024; May 1, 2024 • [a specified email address]: January 20, 2025 • [a specified email address]: March 18, 2024; April 8, 2024 For all emails requested, please limit the search to emails that reference or relate to at least one of the following: • Dennaoui • Weessam Dennaoui • PT20762 • DS2849 • Walgreens #3251 • 2024-1388 • 2024-1389 • PHA-2024-0071 • PHA-2024-0072 • INV-10538 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

Helen Rush-Lloyd SPR25/2346 Page 2 August 25, 2025 2. Closed Session Legal Opinions and Discussions (Docket PHA-2024-0071, Licensee Weessam Dennaoui, PT20762) • May 1, 2025: Any closed session legal opinions, meeting minutes, or discussions regarding the necessity and justification of continuing the summary suspension for docket PHA-2024- 0071, Licensee Weessam Dennaoui (PT20762), including case presentations. • May 1, 2025: Any video and audio recordings, if applicable, of closed session discussions, presentations, or deliberations on the necessity and justification of continuing the summary suspension for this matter. The Department responded on August 5, 2025, and assigned reference number BHPL- 2025-897 to this request. Unsatisfied with the Department’s response, Mr. Dennaoui petitioned this office, and this appeal, SPR25/2346, 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. Current Appeal In his appeal petition, Mr. Dennaoui argues the following: The Department reported no responsive emails and withheld all closed-session records under Exemption F, attorney work-product, and attorney–client privilege, yet it did not identify record categories, provide a privilege/exemption log, or release reasonably segregable non-exempt portions. . . . In summary, DPH/BHPL withheld all responsive records for item #2 without identifying record categories, providing a privilege or exemption log, or

Helen Rush-Lloyd SPR25/2346 Page 3 August 25, 2025 conducting a segregability review, and applied broad claims of Exemption F, work-product, and attorney–client privilege without specific justification. It remains unclear which records exist, what portions are exempt, or how any withholding satisfies the Public Records Law’s requirements for particularity, demonstrable prejudice to non-existent law enforcement efforts, and release of non-exempt material. Upon review of the appeal petition, it appears Mr. Dennaoui objects only to the Departments response to Item 2 of his request. The Department’s August 5th Response In its August 5, 2025 response, the Department states that it has no records responsive to Item 1 of the request. With regard to Item 2 of the request, the Department states that it is withholding responsive records pursuant to Exemption (f) of the Public Records Law and the attorney-client privilege. See G. L. c. 4, § 7(26)(f). 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 August 5th response, under Exemption (f), the Department argues the following: To the extent that DPH possesses records responsive to your request regarding items under #2, such records are withheld from production because they are part of an ongoing investigation and are subject to an exemption pursuant to G.L. c. 4,

Helen Rush-Lloyd SPR25/2346 Page 4 August 25, 2025 § 7, Cl. 26(f), and therefore, are not subject to disclosure. Exemption (f) applies to 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. Based on the Department’s response, it is unclear how the responsive records constitute investigatory materials. Further, the Department states that the requested records are associated with an ongoing investigation, but it does not explain the subject of the investigation nor does it describe how the requested records are part of the investigation. Also, the Department did not demonstrate how disclosure of the withheld records “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest,” as required to withhold records under Exemption (f). Additionally, it is unclear from the Department’s response which specific records the Department intends to withhold. The Department must identify the records, categories of records, or portions of records it intends to withhold under Exemption (f). See G. L. c. 66, § 10(b)(iv) (a 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”). It is further uncertain why the records must be withheld in their entirety. The Department must explain whether the records can be redacted so that segregable portions can be provided. See Reinstein, 378 Mass. at 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). 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. v. Div. of Capital Asset Mgmt., 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

Helen Rush-Lloyd SPR25/2346 Page 5 August 25, 2025 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). In its August 5th response, under the attorney-client privilege, the Department argues the following: Additionally, many of these records under item #2 are considered attorney work product and are withheld from production because they are subject to an exemption pursuant to G.L. c. 4, § 7, 26, the attorney-client privilege afforded to government agencies by Suffolk Construction Co. v. Division of Capital Asset Management, 449 Mass. 444 (2007). Based on the Department’s response, it is unclear which specific records have been withheld pursuant to the attorney-client privilege. Specifically, the Department must provide an index comprised of a detailed description of each record withheld or redacted 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 Department must clarify whether the communications were made during the course of the client’s search for legal advice from the attorney in his or her capacity as such, whether the communications were made in confidence, and that the privilege as to the communications has not been waived. See Suffolk, 449 Mass. at 450 n.9. Conclusion Accordingly, the Department is ordered to provide Mr. Dennaoui 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. Mr. Dennaoui may further appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Weessam Dennaoui