How Public Records Law can force transparency and hopefully bring accountability. Root out the rats!

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This Sunday marks the beginning of  Sunshine Week, a national celebration started in  Florida 15  years ago to promote open government. Transparency is about shedding light.  Transparency brings accountability, and, often, meaningful reform.

On June 3, 2016 Governor Charlie Baker signed into law the first update to Massachusetts public records law since 1973.  House Bill 4333  imposes shorter time frames for agencies to respond to records requests.  Most agencies need to respond within 10-days but can be granted a 20-day extension provided they show good cause for it.  Those who believe a state agency  has violated its legal obligations can petition the Supervisor of Records and agencies are also subject to punitive damages for failure to comply with the requirements.

Massachusetts has historically ranked at the bottom of the barrel in terms of giving its citizens  access to public records.  A 2015 assessment by  a non-profit investigative news organization gave the state a grade of F and ranked it below Mississippi and Arkansas in the category of public records access (40th in the nation).

Under the new law documents previously provided with missing or illegible date-stamps were requested from the board.  The sole reason for this request was to  determine if these documents were submitted as evidence and forwarded to the tribunal for consideration at the hearing for which they were considered to be heard a, heretofore impossible task due to toothless public records law in Massachusetts.  This matter should be a given.  If I mail a letter I do not question or fret over whether or not it was received by the person I sent it to and  the same dynamic applies here.  It is a given assumption  that documents submitted as evidence for at hearing reaches those individuals who are supposed to hear that evidence at that hearing.    That is how the system is supposed to work and, like a lost letter, exceptions should be rare as there are safeguards in place to assure it.   Here we have a group that has removed those safeguards.  The Physician Health and Compliance Unit (PHCU) is part of the medical board but independent of the medical board and exist as a self-contained unit with no oversight, auditing of or accountability.   The PHCU was created to serve as a liaison between the state PHP and medical board to handle board cases involving doctors being monitored under PHP contract.  Ostensibly they are an objective go-between and these individuals are assumed to seek, follow and tell the truth.  Their job is to review the evidence and let the chips fall where they may.  They do not.  Given the power to act as their own hearing officers and present cases to the board they hold all the chips.  All evidence supporting any doctors case before the board in a physician health case must be submitted to the PHCU, not directly to the board and if that evidence contradicts the PHP then it never ever gets to the board.  This has been suspected for years but when these documents are later requested to see if they had been reviewed board has been able to  delay, withhold and censor them.  There has previously been no way to determine these matters and they could get away with whatever they wanted by gaming the system under toothless laws.

Not anymore (hopefully).

The Commonwealth of Massachusetts Public Records Division has been a breath of fresh air. Those I have interacted with have integrity and empathy as well as zeal.   Although limited in scope they can hold agencies to account by demanding the provision of complete, legible and accurate records and not backing down.

Pam Wilmot, executive director of Common Cause Massachusetts stated:

“As the cradle of liberty, Massachusetts should lead the way on openness and transparency, not lag behind the rest of the nation. The law Governor Baker just signed will help us catch up and begin to take our rightful place among those states that highly value and promote transparency.”

Document Submitted as Evidence for Hearings Date-Stamped  Long After

In response to a June 2016 request the board provided  just one with a legible date-stamp; a December 15, 2011 letter requesting  an attached “litigation packet”be   considered at an upcoming December 21, 2011 hearing .  The documents are all date-stamped January 17 2012 (nearly one month after ).. All of the other documents where  illegible or missing dates rendering it impossible to determine if and when they were entered into evidence  as required by law under  M.G.L. c. 30A§ 11(4) which states:

All evidence, including any records, investigation reports, and documents in the possession of the agency of which it desires to avail itself as evidence in making a decision, shall be offered and made a part of the record in the proceeding, and no other factual information or evidence shall be considered, except as provided in paragraph (5) of this section. Documentary evidence may be received in evidence in the form of copies or excerpts, or by incorporation by reference.

Board Defense counsel Bryan Bertram dismissed the date-stamp as irrelevant and claimed it did reflect when it was entered into evidence but when it was scanned into the  Document Imaging Unit (DIU) . He claimed this occurs  after hearings not before. See  logical fallacy and lies.  We filed a Motion to Produce Documents (SJC-2015-0267, # 44) with legible dates which Bertram opposed in his  Response to Motion to Produce Documents

Bertram claimed “board staff” had reviewed its records and minutes and retrieved  from “off-site storage” those “materials before the Board in December 2011.”  The documents I claimed were suppressed, he claims , “are in fact there.”  and provides footnotes:

1 The Board’s staff has reviewed its records and confirmed this to be the case.

2 To be sure, and to put this matter to rest for the Court once and for all, the Board has retrieved from off­site storage those materials before the Board in December 2011. The documents that Dr. Langan claims were “suppressed” are in fact there—and this should not be surprising given the Board’s many orders since that time, all of which have disclaimed any reliance on the July 2011 PEth test.

3 The Board’s staff has confirmed this by reviewing its minutes.

He claimed my request was :

“……nothing more than an attempt to impose upon the Board a duty–absent from any statute, regulation or rule to search for and produce documents to him that are outside of that record.  Dr. Langan’s  Motion tellingly directs this Court to no authority to support such a request. Because it is devoid any basis in the law, the Motion should be denied.”

As of January 1, 2o17 my request for  legible documents does have a basis in the law. Authority does now exist to support such a request.

I filed a Public Records Request under the new law on January 9, 2017.   I received a response from Board counsel Robert Harvey  ( January 20, 2017 documents provided by board).   Most are still illegible or missing dates.  The same document date-stamped nearly one -month after the hearing for which it was submitted was provided.   One other had legible dates.   A document written June 6, 2013  is stamped both electronically and by hand with dates sometime in 2012, before it was ever written.

And in response to an Order from the Supervisor of Records  I was  provided the very same document date-stamped January 17, 2012.   But it is not a copy but original as indicated by the “blue-ink.    This original document precludes the existence of any others date-stamped earlier than January 17, 2012.    This documents no earlier dated copies could have been submitted as evidence before the hearing. This document was never admitted into evidence and may not be relied upon by the board in its decision M.G.L. c. 30A, § 11(4).

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The records, minutes, and materials  reviewed and retrieved by “board staff” constitute public records. I requested them. I also requested the board “reports” that would have resulted from “board staff” confirming  it was before the board in 2012.

“ABA Model Rule 3.3, Candor Toward The Tribunal, declares that ‘a lawyer shall not knowingly make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer.’ If a lawyer ‘has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.’

An attorney must have a factual basis for alluding to, offering, or relying on evidence at trial. That factual basis may not be wishful thinking. There are two requirements for a factual basis — an attorney’s subjective belief, and objective evidence to support that belief.

But none exist.  Not one  document, reference, record, or any other materials exist that are chronologically consistent with the documents being before the board in 2012. The only document that exists is the litigation packet date-stamped a month after the hearing.

I asked Bertram to either provide the factual basis or admit to the false statements.  He’s been ignoring me and will not answer.

The whole picture depicts the respondent as an attorney who, when it serves his advantage, is willing to violate clear norms of professional responsibility and to engage in purposeful deceit which harms others.

“The privilege of practicing law does not come without the concomitant responsibility of truth, candor, and honesty. Because no single transgression reflects more negatively on the legal profession than a lie, attorney misconduct involving dishonesty justifies disbarment.” Id. (quoting In re Young’s Case, 913 A.2d 727 (N.H. 2006)).

No matter what it takes I am going to make sure that is a certainty in this case.


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