Canty, Kathryn v. Department of Public Health (SPR 20260804)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 17, 2026 SPR26/0804 Helen Rush-Lloyd Records Access Officer Massachusetts Department of Public Health 250 Washington Street Boston, MA 02108 Dear Ms. Rush-Lloyd: I have received the petition of Kathryn Canty 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 March 4, 2026, Ms. Canty requested: [1] Original Licensure Application  The complete original licensure application submitted by [an identified individual] for LMFT #1007, including all forms, supporting documents, and attachments submitted therewith. [2] Credential Verification Records  All records reflecting any credential verification conducted by BHPL or its agents in connection with [an identified individual’s] original licensure application, including any correspondence with educational institutions, third-party verification services, or other entities contacted to verify his claimed educational background.  All educational credentials, diplomas, transcripts, or degree documentation submitted by or on behalf of [an identified individual] in support of his original licensure application. [3] Complaints Index  A list identifying any complaints filed against [an identified individual] (LMFT #1007) at any time, including for each complaint: the date filed, the nature of the complaint in general terms, and the disposition or current status. I am not requesting the underlying complaint files or supporting materials at this time. 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 SPR26/0804 Page 2 March 17, 2026 The Department responded on March 6, 2026, and assigned reference number 2026-269 to this request. Unsatisfied with the Department’s response, Ms. Canty petitioned this office and this appeal, SPR26/0804, 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. Att’y 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 her appeal petition, Ms. Canty contends: 1. The Search Was Inadequate[.] BHPL’s response limits its search to “the Archives” without specifying what archives were searched, what electronic records systems were queried, whether predecessor agency records were examined, or whether off-site storage facilities were searched. . . . 2. BHPL’s Own Records Confirm No Educational Credentials Were Ever Recorded . . . . 3. The Complaints Index Was Not Adequately Produced[.] The Record of Standing Report contains a complaints table showing three complaints associated with LMFT #1007, including a complaint filed on May 9, 2013 (Case No. 20130509MH003-IT-ENF) that was closed with no action taken and no investigator assigned. BHPL produced no explanation of these complaints as requested. The 2013 complaint raises significant public safety concerns given that it predates at least two subsequent complaints and was closed without action. 4. BHPL Has Not Cited Any Exemption for Withholding the Application . . . .

Helen Rush-Lloyd SPR26/0804 Page 3 March 17, 2026 Their sole stated basis for non-production is that they could not locate it. The inability to locate a record is not a recognized exemption under Massachusetts public records law and does not relieve BHPL of its obligation to explain the circumstances of the record’s absence or to conduct a more thorough search. . . . Based on Ms. Canty’s appeal petition, she does not appear to appeal the redactions to the responsive record under Exemption (c) of the Public Records Law. The Department’s March 6th Response In its March 6, 2026 response, the Department stated, “. . . DPH has no records that are responsive to your request after a comprehensive search in the Archives as we were unable to locate this application.” Additionally, the Department provided a record responsive to Item 3 of Ms. Canty’s request, citing Exemption (c) of the Public Records Law to redact the “licensee’s year of birth and email address.” Additional Records Based on the Department’s response and in conjunction with the information provided in Ms. Canty’s appeal, it is unclear if the Department possesses records responsive to Item 1 of the request. Specifically, it is unclear whether the Department possesses “the original licensure application.” The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). Custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). Consequently, the Department must clarify whether additional records exist. No Duty to Create Records Please be advised that the duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). Further, under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. See 32 Op. Att’y Gen. 157, 165 (May 18, 1977). With regard to Item 3 of the request, Ms. Canty states in her appeal petition that “[t]he Complaints Index [w]as [n]ot [a]dequately [p]roduced” and “BHPL produced no explanation of these complaints as requested.” Where the Department provided a responsive record, and the Department has no duty to create records, I find this portion of Ms. Canty’s appeal is resolved. Conclusion Accordingly, the Department is ordered to provide Ms. Canty with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its

Helen Rush-Lloyd SPR26/0804 Page 4 March 17, 2026 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. Ms. Canty 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: Kathryn Canty