Canty, Kathryn v. Department of Public Health - Bureau of Health Professions Licensure (SPR 20260949)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 26, 2026 SPR26/0949 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 6, 2026, Ms. Canty requested: . . . [A]ll records in the custody or control of BHPL relating to Complaint No. 20130509MH003 / Case IT-ENF, including but not limited to: [1] The complete complaint as filed, including all forms, attachments, and supporting materials submitted by the complainant. [2] All records reflecting the identity and contact information of the complainant, to the extent not exempt from disclosure. [3] All internal correspondence, memoranda, emails, or notes relating to the receipt, review, processing, or closure of this complaint. [4] All records reflecting the basis for the closure of this complaint with no action taken and no investigator assigned. [5] All records reflecting any communications between BHPL and [an identified individual] in connection with this complaint. [6] All records reflecting any communications between BHPL and the complainant in connection with this complaint. [7] Any records reflecting supervisory review or authorization of the decision to close this complaint without action. The Department responded on March 17, 2026, and assigned reference number BHPL- 2026-280 to this request. Unsatisfied with the Department’s response, Ms. Canty petitioned this office and this appeal, SPR26/0949, was opened as a result. 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 SPR26/0949 Page 2 March 26, 2026 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. The Department’s March 17th Response On March 17, 2026, the Department stated, “. . . DPH has no records that are responsive to your request. We no longer have the case as we are only required to keep dismissed cases for three years per the records retention schedule.” Current Appeal In her appeal petition, Ms. Canty contends: 1. Insufficient Documentation of Destruction BHPL has not identified the specific retention schedule that governs dismissal and destruction of complaints. The response does not include a citation to the schedule, the authority under which the records were destroyed, or confirmation that destruction followed proper procedures. Massachusetts public records law requires more than a mere assertion of non-existence. 2. Inadequate Search and Verification BHPL did not describe what systems, archives, or locations were searched prior to concluding that the records no longer exist. A responsible custodian must describe the scope of the search to demonstrate that all reasonable efforts were made to locate responsive records. 3. Existence of Derivative or Administrative Records The Record of Standing Report for LMFT #1007 confirms that Complaint No.

Helen Rush-Lloyd SPR26/0949 Page 3 March 26, 2026 20130509MH003 was filed, assigned a case number, and closed with no action taken. It is unclear whether any administrative, electronic, or derivative records remain. Public records law obligates custodians to search for and produce all responsive records, not just the original complaint file. 4. Public Safety and Urgency Complaint No. 20130509MH003 involves a prior allegation against [an identified individual] that may involve sexual misconduct or abuse. Given the serious nature of such allegations, there is a compelling public interest and a sense of urgency in identifying and reviewing any records regarding its handling, including administrative notes, internal correspondence, closure documentation, or derivative records. Proper documentation of this complaint is critical for oversight and transparency. This appeal concerns only historical records and does not seek information regarding any ongoing investigations. Records in Existence 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 the request. Specifically, it is unclear whether the Department possesses “any administrative, electronic, or derivative records” responsive to Items 2 through 7 of Ms. Canty’s request. 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 any responsive records exist. Further, where the Department stated in its March 17th response that “[w]e no longer have the case as we are only required to keep dismissed cases for three years per the records retention schedule[,]” the Department must demonstrate whether it followed proper records retention protocol for the responsive records. The Department must clarify this matter. 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 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).

Helen Rush-Lloyd SPR26/0949 Page 4 March 26, 2026 Sincerely, Manza Arthur Supervisor of Records cc: Kathryn Canty