Weessam Dennaoui v. Department of Public Health (SPR 20252470)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 4, 2025 SPR25/2470 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 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 August 20, 2024, Mr. Dennaoui requested the following: [1] Copies of all voluntary agreements not to practice related to Board of Pharmacy complaints against individual licenses handled by RPh investigator [a named individual] and executed by board counsel … between December 1, 2023, and April 30, 2024. [2] Summary Suspension - Docket No. PHA 2024-0071 [a.] Records of any legal opinions, meeting minutes, and discussions related to the necessity and justification of summary suspension, including the case presentation. [b.] Copies of Standard Operating Procedures (SOPs) followed during the investigation, complaint process, and summary suspension, if applicable. [c.] Internal communications (emails, memos, Teams messages) between board members, investigators, and legal counsel related to this case, which have not been shared with the licensee or their counsel . . . . [d.] Follow-up communications regarding the investigation of allegations post-summary suspension. [e.] Specific time and reasoning for the staff assignment change from investigation case INV10538 to formal complaint PHA 2024-0071, including internal communications or documentation explaining this decision. On September 17, 2024, Mr. Dennaoui clarified his request and stated, “I am refining my request to seek communications (emails, Teams messages, memoranda) between triage 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 SPR25/2470 Page 2 September 4, 2025 committee members, OPP administrative staff, OPP investigators, investigations supervisor, and any non-exempt communication with board counsel, regarding INV-10538, case 2024-1388, or formal complaint PHA-2024-0071, for the periods 03/23/24 to 04/10/2024 and 04/24/24 to 05/03/2024.” Prior Appeals This request was the subject of prior appeals. See SPR24/2679 Determination of the Supervisor of Records (October 4, 2024), SPR24/3198 Determination of the Supervisor of Records (December 11, 2024), SPR25/0619 Determination of the Supervisor of Records (March 18, 2025) and SPR25/1021 Determination of the Supervisor of Records (April 29 2025). In my April 29th determination, I learned that the Department was to provide a further response to Mr. Dennaoui. The Department responded on June 3, 2025. Unsatisfied with the response, Mr. Dennaoui petitioned this office and this appeal, SPR25/2470, 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, Mr. Dennaoui states, “...the Department’s privilege logs do not meet the requirements of the Public Records Law.” The Department’s June 3rd Response In its June 3, 2025 response, the Department stated “... the Department previously identified thirty-six (36) potentially responsive records between Board of Registration in Pharmacy (BPHL) Legal Counsel and the DPH employees containing legal advice ...” The

Helen Rush-Lloyd SPR25/2470 Page 3 September 4, 2025 Department cited attorney-client privilege in support of withholding the requested records in their entirety and provided a privilege log. 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 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, 450 n.9 (2007); see also Hanover Ins. Co. v. Rapa & 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 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). Under attorney-client privilege, the Department asserted, “[i]n an effort to clarify the nature and requisite information contained in its privilege index, the Department has modified the titling and format of the attached privilege index ... The enclosed Privilege Index provides details about these documents See 950 CMR 32.06(3)(d). These documents constitute direct attorney-client communications or reflect these communications without destroying the underlying privilege.” The Department further asserted: In its individual review of each record, the Department confirmed that each of these records – all email correspondences – contained communications between BPHL’s attorneys and DPH employees. In each communication, the DPH employees were seeking and/or receiving legal advice, assistance and/or guidance regarding the active Board of Registration in Pharmacy investigation at issue. The Department reviewed these records individually and confirmed that all communications were made in confidence and thus met the legal requirements outlined in Suffolk Construction. 449 Mass. 444, 450-51 (“communications between government agencies and agency counsel are protected by the privilege as long as they are made confidentially and for the purpose of obtaining legal advice for the agency.”). As previously noted, in order to comply with the SoR’s December 11, 2024 determination, the Department provided a second, updated privilege index that provided details about the substance of these communications and the grounds for the privilege. The following individuals were listed in the Index as [identified] attorneys. These Department attorney names were provided

Helen Rush-Lloyd SPR25/2470 Page 4 September 4, 2025 so that you could identify that there was an attorney involved in each communication, understand the nature of the communication and how the attorney-client relationship was applicable. Contrary to your continued assertion, none of the non-attorneys listed in the communication were third or outside parties, and all were actively employed as members of the Department’s Board of Registration in Pharmacy at the time of the communication. Thus, the privilege was not waived. In the updated version, the Department has explicitly identified the column that outlines a communication-specific summary for the reasoning and justification that underlies the privilege. Based on the Department’s response, I find that the Department has satisfied the requirements articulated in Suffolk to withhold the requested records pursuant to attorney-client privilege. Further, I find the Department has provided a sufficient privilege log in accordance with G. L. c. 66, § 10A(a). Conclusion Accordingly, I will now consider this administrative appeal closed. Mr. Dennaoui is advised that this office shares jurisdiction with the Superior Court. See G. L. c. 66, § 10A(c). Sincerely, Manza Arthur Supervisor of Records cc: Weessam Dennaoui