Alexander Terry v. Department of Public Health - Bureau of Health Professions Licensure (SPR 20252459)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 4, 2025 SR25/2459 Helen Rush-Lloyd Records Access Officer Department of Public Health 250 Washington Street Boston, MA 02108 Dear Ms. Rush-Lloyd: I have received the petition of Alexander E. Terry, Esq. appealing the response of the Department of Public Health, Bureau of Health Professions Licensure (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 30, 2025, Attorney Terry requested the following: [A]ll records relating to any meetings at which the matters concerning [a named individual] (DEN-2024-0075, CAS- 2022-0086 and Docket No. SAINV- 19686), were considered. This request includes, but is not limited to, correspondences regarding the June 5, 2024 meeting, the Investigator’s Report for SA-INV-19686 with exhibits, session meeting recordings, any and all recordings including video and/or audio files, and all other materials exchanged among or provided to the Board in connection with its consideration of [the named individual]’s matter. The Department responded on May 30, 2025, and assigned tracking number BHPL-2024- 1529 to this request. Unsatisfied with the Department’s response, Attorney Terry petitioned this office, and this appeal, SPR25/2459, was opened as a result. Status of the Requestor 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, neither Attorney Terry’s status nor that of his client will play any role in a 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 SR25/2459 Page 2 September 4, 2025 determination as to whether the records should be disclosed or redacted under the Public Records Law. It is unclear if Attorney Terry or his client may have a greater right of access to the responsive records outside the Public Records Law. The parties are encouraged to communicate to determine if there is another means affording Attorney Terry a greater right of access to the responsive records. 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. The Department’s May 30th Response In its May 30, 2025 response, the Department states that it has previously provided some responsive records, and is withholding others pursuant to G. L. c. 112, § 65C, as it operates through Exemption (a) of the Public Records Law. See G. L. c. 4, § 7(26)(a). 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

Helen Rush-Lloyd SR25/2459 Page 3 September 4, 2025 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, 545-46 (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. In its response, the Department cites G. L. c. 112, § 65C, which provides in pertinent part as follows: Meetings of the boards held for the purpose of conducting investigative conferences prior to the issuance of an order to show cause or for purposes of discussing the terms of a negotiated settlement of a complaint against a licensee shall not be considered open meetings within the meaning of section 11A1/2 of chapter 30A, but a licensee shall have access to records of any meetings concerning the licensee as may be necessary for the defense of his license at an adjudicatory proceeding. G. L. c. 112, § 65C. In its May 30th response, under the statute cited above, the Department argues the following: These documents were previously provided to you on December 3, 2024 in response to your prior request, tracking number BHPL-2024-1529. 65C Session meeting recordings and video have been withheld from production because they do not exist in a segregable format to edit only your client’s portion of the meeting, and they are subject to an exemption pursuant to M.G.L. c. 112, s.65C which states, in part, “Meetings of the boards held for the purpose of conducting investigative conferences prior to the issuance of an order to show cause or for purposes of discussing the terms of a negotiated settlement of a complaint against a licensee shall not be considered open meetings within the meaning of section 11A½ of chapter 30A.” The Department is advised that for Exemption (a) to apply, a statute must either expressly state that the withheld record is not subject to disclosure under the Public Records Law, or limit

Helen Rush-Lloyd SR25/2459 Page 4 September 4, 2025 dissemination of said information to a defined group or individuals or entities. Consequently, based on the Department’s response, it is unclear how the statute cited above, either specifically or by necessary implication, would permit the Department to withhold or redact the requested records. The Department must clarify this matter. Conclusion Accordingly, the Department is ordered to provide Attorney Terry 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. Attorney Terry 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: Alexander E. Terry, Esq.