Morey, Kerri v. Department of Public Health - Bureau of Health Professions Licensure (SPR 20260144)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 28, 2026 SPR26/0144 Charlena Christiansen Program Analyst Department of Public Health 239 Causeway Street, Suite 500 Boston, MA 02114 Dear Ms. Christiansen: I have received the petition of Attorney Kerri Morey, appealing the response of the Department of Public Health, Bureau of Health Professions Licensure (Department/BHPL) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 8, 2026, Attorney Morey requested, “…the BORN file, including, but not limited to the complaint, licensee’s response and Investigative Report pertaining to a complaint made against [an identified individual]. I do not represent this licensee in this matter.” On January 13, 2026, the Department provided a response and assigned reference number BHPL-2026-0023 to this request. Unsatisfied with the response, Attorney Morey petitioned this office and this appeal, SPR26/0144, 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. 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

Charlena Christiansen SPR26/0144 Page 2 January 28, 2026 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, Attorney Morey contends: In May of 2023, I submitted a public records request to the Department of Public Health, Bureau of Health Professions Licensure seeking the Board file pertaining to the [identified individual]. The Board matter involving the licensee was recently opened. On May 11, 2023, BHPL produced a set of documents in response to the request, including the complaint form against the Licensee (with redactions), notification letters, and related administrative materials, and represented that the production completed its response. Those materials expressly confirm that the Board opened a formal complaint against Licensee (NUR-2023-0140), issued a written notice of investigation to the Licensee, and required the Licensee to submit a detailed written response together with supporting documentation, including employment records, evaluations, certifications, remedial actions, and other materials directly responsive to the allegations. … On January 13, 2026, BHPL denied my request in its entirety and asserted, without individualized analysis, that all records requested constitute investigative materials…. … The licensee’s response and supporting documents are factual submissions created by or on behalf of the licensee, not internal deliberative memoranda, legal strategy documents, or confidential law enforcement techniques. These materials exist independently of any enforcement strategy and do not, by their nature, reveal investigatory methods or prosecutorial theories. … This position is especially concerning where the BHPL and the Board have historically produced the documents requested, and only recently began taking the position that the materials are exempt. By way of example, on February 11, 2025, BHPL produced the same materials being sought in this matter in the companion case to this one, that involves a different RN licensee, but stems from the same underlying facts, circumstances, incident and complaint (the “Companion Case”). See, Exhibit D…. … Upon information and belief, at this stage, the matter is no longer under active investigation and is likely in the hearing phase or has been resolved. …

Charlena Christiansen SPR26/0144 Page 3 January 28, 2026 The Department’s January 13th Response In its January 13, 2026 response, the Department cited Exemption (f) of the Public Records Law to withhold the requested records in their entirety. 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. The Supreme Judicial Court has stated that Exemption (f) aims at “the avoidance of premature disclosure of the Commonwealth’s case prior to trial, the prevention of the disclosure of confidential investigative techniques, procedures, or sources of information, the encouragement of individual citizens to come forward and speak freely with police concerning matters under investigation, and the creation of initiative that police officers might be completely candid in recording their observations, hypotheses and interim conclusions.” Bougas, 371 Mass. at 62; cited with approval in Reinstein, 378 Mass. at 289. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas, 371 Mass. at 62. To properly claim that Exemption (f) applies, a custodian must demonstrate that the disclosure of the records would have a prejudicial effect on its investigative efforts. This can be accomplished by describing how the records fall into one of three categories. These are the three categories that justify withholding records under Exemption (f):

Charlena Christiansen SPR26/0144 Page 4 January 28, 2026  The records reflect an ongoing investigation, such that any information relating to an ongoing investigation that could potentially alert suspects or targets to the activities of investigative officials;  The records reflect internal techniques, procedures, or sources, such that their disclosure would prejudice not only ongoing, but future law enforcement efforts; or  Disclosure of records would cause a chilling effect, because the exemption allows investigative officials to provide an assurance of confidentiality to individuals so that they will speak openly about matters under investigation. Such records in this third category include: any details in statements that directly or indirectly identify a private citizen who volunteers as a witness; an entire statement if the identity of witnesses is known to the requestor; and information voluntarily provided by an individual or entity to aid in the investigation. In its response, the Department asserted: The investigative file, NUR-2023-0140, is being withheld from production because it is part of an ongoing investigation and subject to an exemption pursuant to G.L. c. 4, § 7, Cl. 26(f), and therefore, is not subject to disclosure. … Releasing these documents would compromise the investigation and prosecution (if prosecution is necessary) by: (1) revealing strategy that could prompt an individual to interfere with investigative efforts or tamper with evidence; (2) causing confusion for the public and prejudice to the board because the investigative materials are preliminary and based on an incomplete process; and (3) prejudicing the board by revealing investigation and enforcement strategy. Although the Department claims that there is an open investigation, it is unclear from the Department’s response how the investigation remains ongoing. Also, it is not clear how disclosure of all the requested records would disclose confidential investigative techniques. Further, it is unclear how the records in their entirety can be withheld under Exemption (f). Specifically, the Department did not demonstrate how disclosure of any segregable portion of the responsive records “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest[,]” as required under Exemption (f). 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). The Department must clarify these matters. Conclusion Accordingly, the Department is ordered to provide Attorney Morey with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten 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

Charlena Christiansen SPR26/0144 Page 5 January 28, 2026 pre@sec.state.ma.us. Attorney Morey may appeal the substantive nature of the Department’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Kerri M. Morey, Esq.