Morey, Kerri v. Department of Public Health (SPR 20260297)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 5, 2026 SPR26/0297 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 12, 2026, Attorney Morey requested, “…the BORN’s file in the above matter. Please note that I do not represent the licensee in this matter.” On January 23, 2026, Attorney Morey modified her request to, “…the licensee’s written response to the complaint, and any documents submitted by the licensee with the written response, subject to redaction of information that is exempt from disclosure under GL c. 4 s 7(26)(c).” The Department provided responses on January 20, 2026 and January 23, 2026, and assigned reference number BHPL-2026-0040 to this request. Unsatisfied with the responses, Attorney Morey petitioned this office and this appeal, SPR26/0297, 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 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 SPR26/0297 Page 2 February 5, 2026 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, Attorney Morey contends: In particular, I am appealing BHPL’s refusal to produce the licensee’s written response and documents filed by the licensee, [an identified individual] to the Complaint filed against her with the Board of Registration in Nursing in the complaint no. NUR-2025-0205. To avoid any dispute regarding scope of this appeal, I am not seeking the Board’s entire file as originally requested, and I am not seeking any agency-generated investigatory materials. I am only seeking the licensee’s written response to the complaint, and the documents submitted to the Board by the licensee. … The Department’s January 20th and 23rd Responses In its January 20, 2026 response, the Department cited Exemption (c) to redact two responsive records and Exemption (f) of the Public Records Law to withhold the remaining requested records in their entirety. G. L. c. 4, § 7 (26)(f). Based on the information provided in Attorney Morey’s appeal, she does not appear to be appealing the redactions under Exemption (c) of the Public Records Law. 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

Charlena Christiansen SPR26/0297 Page 3 February 5, 2026 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):  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 complaint, licensee response, witness statements, letters of support, correspondence, and other documentary evidence from the investigative file,

Charlena Christiansen SPR26/0297 Page 4 February 5, 2026 NUR-2025-0205, are 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. … Specifically, the file contains preliminary investigative findings and discussion on investigative strategy. 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. On January 23, 2025, in response to Attorney Morey’s modified request, the Department asserted, “[t]hese items were already addressed in the letter sent to you regarding request BHPL- 2026-0040, paragraph 3, that these items are being withheld[,]” and “[y]es, the response would be the same.” 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 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.