Terry, Alexander v. Department of Public Health - Bureau of Health Professions Licensure (SPR 20261320)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 27, 2026 SPR26/1320 Charlena Christiansen Program Analyst Executive Office of Health and Human Services Department of Public Health Bureau of Health Professions Licensure 250 Washington Street, 3rd Floor Boston, MA 02108 Dear Ms. Christiansen: I have received the petition of Attorney Alexander Terry, on behalf of Dr. Daniel Tracy, appealing the response of the Department of Public Health, Bureau of Health Professions Licensure (Department/DPH) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On December 4, 2025, Attorney Terry requested the following: [A]ll records that were not previously produced relating to any meetings at which the matters concerning [an identified individual] (DEN-2025-0049 and Docket No. SA-INV-19489), were considered. This request includes, but is not limited to, correspondences regarding the March 5, 2025 meeting, the Investigator’s Report for SA-INV- 19489 with exhibits, session meeting recordings, any and all recordings including video and/or audio files, and all other materials exchanged among or provided to the Board in connection with or in follow up to its consideration of [an identified individual’s] matter. We also sent a supplemental response on behalf of [an identified indiivudal] in July 2025, and while we do not require a copy of the response we sent, if the Board’s file has been updated in other ways in connection with the response, we hereby request those documents. Further please identify any other meetings, prior or subsequent to March 5, 2025, at which [an identified individual’s] matter was considered, and provide related records pursuant to the statute. The Department responded on January 13, 2026, and assigned reference number BHPL- 2025-1005 to this request. Unsatisfied with the Department’s response, Attorney Terry petitioned this office, and this appeal, SPR26/1320, 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

Charlena Christiansen SPR26/1320 Page 2 April 27, 2026 Status of the Requestor Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, neither Attorney Terry’s status, nor that of his client, will play any role in a determination as to whether the records should be disclosed or redacted under the Public Records Law. 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 petition, Attorney Terry argues, among other things, the following: This letter hereby appeals the Public Records Liaison’s failure to produce – in violation of the plain language of MGL c. 112 § 65C – 65C session meeting recordings and video. . . . Clause (a) exempts records where another statute makes them confidential. Section 65C is such a statute—it makes investigative and settlement meetings confidential to the public—but simultaneously mandates access for the licensee. Thus, the confidentiality provision and the access provision are two halves of the same statutory design. . . .

Charlena Christiansen SPR26/1320 Page 3 April 27, 2026 If the Board could invoke § 7(26)(a) or (f) to deny a licensee access, the Legislature’s express grant of a right to records necessary for defense would be nullified. § 7(26)(f), specifically, were it interpreted in the manner suggested by your letter, would completely invalidate the access to records provision of s. 65c. In other words, were it the legislature’s intention to curb a licensee’s access to records relating to an ongoing Board investigation, the last clause of 65c would not appear in the statute (“but a licensee shall have access to records …”). A fair reading of the inclusion of that clause is that M.G.L. c. 4, § 7(26)(f) cannot reasonably be construed to apply to 65c meetings and their records – including recordings. Thus, properly construed, the statutes operate together harmoniously as follows: the public has no right of access to investigative or settlement-related records under § 7(26), but the licensee must be granted access under § 65C. Upon review of the appeal petition, I understand Attorney Terry objects only to the withholding of the “session meeting recordings and video,” and not to the withholding of other records described in the Department’s January 13th response. The Department’s January 13th Response In its January 13, 2026 response, the Department states that it is withholding a video recording under FIPA, as it operates through Exemption (a), and also under Exemptions (c) and (f) of the Public Records Law. See G. L. c. 4, § 7(26)(a), (c), (f). The Department also states that it is withholding an investigation report with attachments under Exemption (f), and email correspondence under the attorney-client privilege. See G. L. c. 4, § 7(26)(f). Further, the Department produced “Records of Standing” in redacted form, and cited Exemptions (a) and (c) of the Public Records Law for redacting the records. See G. L. c. 4, § 7(26)(a), (c). In its January 13th response, regarding the video recording, the Department states the following: DPH is in possession of a video recording of the Board of Registration in Dentistry (“Board”) meeting held in accordance with M.G.L. c. 112, § 65C (“65C Session) on March 5, 2025 in which the [identified] matter was discussed. Meetings held in accordance with M.G.L. c. 112, § 65C are not considered open meetings under the Open Meeting Law and are closed to public attendance. Recordings of 65C Sessions are withheld in accordance from production in accordance with G.L. c. 4, § 7(26), exemptions (c) and (f). Specifically, the meeting recording includes medical information the disclosure of which may constitute an unwarranted invasion of personal privacy, and which may identify individuals. The individuals’ privacy interests outweighs the public’s interest in disclosure. Accordingly, this information is exempt from disclosure pursuant to G.L. c. 4, § 7(26)(c). This information also constitutes personal data, which is protected from disclosure by the Fair Information Practices Act, G.L. c. 66A (“FIPA”). Therefore, this information is also exempt pursuant to G.L. c. 4,

Charlena Christiansen SPR26/1320 Page 4 April 27, 2026 §7(26)(a) because it is exempt by statute or necessary implication thereof, including FIPA and G.L. c. 4, § 7(26)(c), as outlined above. Further, the complaint pertaining to Daniel Tracy, DEN-2025-0049, is currently an open and ongoing investigation. The meeting recording includes the Board’s review of preliminary investigative findings and discussions on investigative strategy, disclosure of which may compromise the Board’s ongoing investigations and prosecutions (if prosecution is necessary) by: (1) revealing the Board’s strategy; and (2) causing confusion for licensees and prejudice to the Board because the discussion of evidence was preliminary and based on an incomplete process. As such, the video is exempt from disclosure in accordance with G.L. c. 4, § 7(26)(f). The March 5, 2025 65C Session meeting recording includes the discussion of numerous matters before the Board, including DEN-2025-0049 which is the subject of this public records request. Please note that Exemptions (c) and (f) apply to the portion of the video limited to [an identified individual] and DEN- 2025-0049. Exemptions (c) and (f) also apply to the entirety of the 65C Session recording. Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7(26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public’s right to inspect records under the Public Records Law is restricted. See Att’y Gen. v. Collector of Lynn, 377 Mass. 151, 154 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either “shall not be a public record,” “shall be kept confidential” or “shall not be subject to the disclosure provision of the Public Records Law.” The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities.

Charlena Christiansen SPR26/1320 Page 5 April 27, 2026 Fair Information Practices Act (FIPA) FIPA and the Public Records Law are to be construed to work together consistent with the legislative purpose. 32 Op. Att’y Gen. Mass. 157, 160 (May 18, 1977). FIPA cannot provide a basis for withholding the requested information unless the records fall within a statutory exemption to the definition of public records. See Allen v. Holyoke Hosp., 398 Mass. 372, 379 (1986) (“determining whether the record sought is protected by FIPA depends on whether the record is a public record pursuant to G. L. c. 4, § 7 Twenty-sixth, and subject to the disclosure provisions of G. L. c. 66A”). FIPA, by itself, cannot justify withholding information. A custodian must first specifically explain how the withheld information is exempt from the Public Records Law. Once a record is found to be exempt from the definition of public records, FIPA may also operate to restrict disclosure. Exemption (c) Exemption (c) permits the withholding of: personnel and medical files or information and any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy; provided, however, that this subclause shall not apply to records related to a law enforcement misconduct investigation. G. L. c. 4, § 7(26)(c). First Clause – Medical Information Medical information that is of a personal nature and relates to a specifically named individual may be exempt from disclosure. Brogan v. Sch. Comm. of Westport, 401 Mass. 306, 308 (1987); Globe Newspaper Co. v. Boston Ret. Bd., 388 Mass. 427, 438 (1983). Generally, medical information is sufficiently personal to warrant exemption. Globe Newspaper Co., 338 Mass. at 432-34. There is a strong public policy in Massachusetts that favors confidentiality as to medical data about a person’s body. Globe Newspaper Co. v. Chief Med. Exam’r, 404 Mass. 132, 135 (1987). Second Clause – Privacy Analysis under the second clause of Exemption (c) is subjective in nature and requires a balancing of the public’s right to know against the relevant privacy interests at stake. Torres v. Att’y Gen., 391 Mass. 1, 9 (1984); Att’y Gen. v. Assistant Comm’r of Real Prop. Dep’t, 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case-by-case basis. This clause does not protect all data relating to specifically named individuals. Rather, there are factors to consider when assessing the weight of the privacy interest at stake: (1) whether disclosure would result in personal embarrassment to an individual of normal sensibilities; (2) whether the materials sought contain intimate details of a highly personal

Charlena Christiansen SPR26/1320 Page 6 April 27, 2026 nature; and (3) whether the same information is available from other sources. See People for the Ethical Treatment of Animals (PETA) v. Dep’t of Agric. Res., 477 Mass. 280, 292 (2017). The types of personal information which the second clause of this exemption is designed to protect includes: marital status, paternity, substance abuse, government assistance, family disputes and reputation. Id. at 292 n.13; see also Doe v. Registrar of Motor Vehicles, 26 Mass. App. Ct. 415, 427 (1988) (holding that a motor vehicle licensee has a privacy interest in disclosure of his social security number). This clause requires a balancing test which provides that where the public interest in obtaining the requested information substantially outweighs the seriousness of any invasion of privacy, the private interest in preventing disclosure must yield. PETA, 477 Mass. at 291. The public has a recognized interest in knowing whether public servants are carrying out their duties in a law-abiding and efficient manner. Id. at 292. Based on the Department’s response, although the video may contain medical information, it is unclear how the video recording, in its entirety, constitutes intimate details of a highly personal nature, nor how disclosure of redacted portions of the video would result in personal embarrassment to an individual of normal sensibilities. It is additionally uncertain whether any of the withheld information is available from other sources. PETA, 477 Mass. at 292. Also, the Department did not provide additional information with respect to the balancing test, which examines whether the public interest in obtaining the requested information outweighs the seriousness of any invasion of privacy. The Department must clarify these matters. 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

Charlena Christiansen SPR26/1320 Page 7 April 27, 2026 Reinstein, 378 Mass. at 289-90. As a matter of course, witness provided information is essential to efficient and effective law enforcement. This exemption is intended to allow investigative officials to provide an assurance of confidentiality to private citizens so that they will speak openly and voluntarily about matters. Bougas, 371 Mass at 62. Any information contained in a witness statement, which if disclosed would create a grave risk of directly or indirectly identifying the voluntary witness is subject to withholding. Globe Newspaper Co. v. Boston Ret. Bd., 388 Mass. 427, 438 (1983). The disclosure of the names and other identifying information of victims, complainants and voluntary witnesses may deter other potential witnesses and citizens from providing information to law enforcement agencies in future investigations. Therefore, Exemption (f) will allow the withholding of the name and identifying details of any victims, complainants and voluntary witnesses, and where the individuals can be indirectly identified even with redaction. 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. Based on the Department’s response, it is unclear how the responsive video constitutes investigatory materials. Further, the Department did not demonstrate how disclosure of the withheld video “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest,” as required to withhold records under Exemption (f). It is additionally uncertain how the video can be withheld in its entirety. 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 explain whether the video can be redacted so that segregable portions can be provided.

Charlena Christiansen SPR26/1320 Page 8 April 27, 2026 Conclusion Accordingly, the Department is ordered to provide Attorney Terry 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. Attorney Terry may further appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Alexander Terry, Esq.