On June 3, 2016 Governor Baker signed House Bill 4333
imposing greater accountability on state agencies when responding to public records requests. This includes shorter time frames to respond to requests (10-days for most), the provision of complete and legible records and appointing a Primary Records Access Officer to handle such requests. The new Public Records Law also subjects agencies to sanctions for failure to comply.with the new law.
On January 9, 2017 I submitted a Public Records Request through the Executive Office of Health and Human Services (EOHHS) Website
for a dozen or so documents that had been submitted for board hearings but never directly addressed and containing textual content with evidence that was never weighed. Moreover, many of the documents provided direct evidence of crimes (no other is evidence needed).
All of these documents were provided to Board counsel Deb Stoller.
Today, Sunday March 12, is the beginning of daylight savings time. It also marks the beginning of Sunshine Week
, a national celebration started in Florida 15 years ago to promote open government, transparency and accountability. Transparency is about shedding light. Transparency can bring accountability, and, often, meaningful reform.
In response to a request for documents submitted for specific board hearings the board has not provided a single satisfactory response. They have not been able to provide a single document that is chronologically consistent with it being considered at the board hearing for which it was submitted. I had no expectations they would and this was the precise point of my record request. These are documents that should exist but do not exist. The vault is empty. None of the documents are in the records because they were suppressed on arrival and never got to the full board. They never considered any of it. The records do not exist.
It has now been over two months and this shows how transparency is not just about shedding light on what is there but what is not there–transparency can also illuminate contrivances and lies. If these documents existed then they would have provided them long ago and this is all coming to light as a result of Public Records Division staff enforcing new Public Records Law and they should be applauded for their integrity, honesty and genuine concern. In a culture of deference, impunity and apathy where giving allowances are the rule rather than the exception this agency deserves an A+ amidst a sea of D’s and F’s.
The majority of documents provided have illegible or missing dates. Undated documents have no value. Analyzing any dataset requires that data-points be annotated with reliable timestamps that signify when the textual content was created and this is especially important with records that accumulate over time. Documents with message content passed on to others must be annotated with reliable timestamps that signify when the textual content was received and acknowledged by the receiver.
The Board Records obtained June 2016
provided pretty clear evidence that the documents were concealed . The only documents with a decipherable date stamp included a December 15, 2011 letter requesting an attached “litigation packet” be provided to the board for consideration at a December 21, 2011 hearing, The documents are all date stamped January 17, 2012. (nearly one month after the hearing).
AAG Bertram dismissed the timestamp and claimed it did not reflect when it was entered into evidence but when it was scanned into the computerized records. In truth they should be one and the same and if that is the case then where is the timestamp reflecting when it was entered into evidence? Bertram claimed this occurs after
hearings not before.
It all defies common sense.
The January 9, 2017 request specifically requested a copy of the documents from the “administrative record” compiled for the December 21, 2011 hearing but in response they returned the same documents provided December 15, 2011 but date stamped January 17, 2012 –nearly a month after the hearing.
The simple and straightforward request was made again and an appeal was filed requesting provision of the documents requested. Thankfully the Public Records Division staff attorneys have not accepted the logical fallacies and half-truths presented to deflect and dismiss a simple and straightforward request for documents. Supervisor of Records Rebecca Murray Ordered the board provide a revised response and we obtained every document related to the December 2011 “litigation packet” that exists and all of the materials that Bertram claims were retrieved from storage. All of it can be seen here:
It is a dataset with an N of 1. The only document retrieved from storage is the original December 15, 2011 letter requesting the “litigation packet” be submitted for consideration at the December 21, 2011 hearing and all of it is date-stamped January 17, 2012 and this precludes the existence of any earlier copies. No other copies exist!
Take a look at the letter and all of the pages of the “litigation packet” as they are pristine. No notations, initials, dates, scribbles or signatures. So how were these documents “considered” at the December 21, 2011 board hearing? At almost 50-pages did they all huddle around it or pass it around the room.
The simple fact is they were never considered by the board. They were sitting in a drawer for a month (my guess under a bunch of moon pies and diet cokes) and then put in the system well after the hearing so no one would notice.
In his cover letter RAO Dolan reiterates the ridiculous claim that the date-stamp reflects when it was “bulk-scanned ” into the electronic archives and not when it was “presented to the board.” What would be the purpose of putting timestamps on documents that have no meaning? This is a bald faced lie and I want to call him on it. Evidence presented for any hearing must be submitted and entered into the record before
hearings. This is common sense but to put this to rest we can turn to the 2012 Manual for Conducting Administrative Adjudicatory Proceedings
which outlines how administrative proceedings are conducted by professional boards. It was also edited by AAG Quinan, the Managing Attorney of the Administrative Law, Government Bureau–the Department AAG Bertram is part of The “administrative record” is listed as one of the “basic principles” in chapter 1 and is second only to “due process” M.G.L. c. 30A, § 11(8). An administrative record must be compiled for every board hearing and indexed. “The record is everything that is properly before the decision maker in rendering the decision.”
The manual makes it crystal clear that evidence must be compiled before hearings and anything not compiled before the hearing must be excluded! Bertram also claimed that “board staff” reviewed its records and minutes and retrieved from “off-site storage” the “materials” that were before the Board in December 2011.”
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 and confirmed this to be the case.
It has now been confirmed that the only “materials” that exist are the documents themselves and they are dated January 17, 2012 and this does not confirm but refutes Bertram’s claims. In sum not a single data-point exists to support this document was before the board on December 21, 2011. Moreover, the document provides direct evidence of crimes (no other evidence is needed).
I have requested that Bertram either provide documentation to support his footnoted claims or reveal to the court the misrepresentations. As a government attorney he is obligated to reveal falsehood and perjury and I requested he do so. But instead of revealing no materials from off-site exist to support his claims he notified the court of his misrepresentation that by “offsite storage” he meant “basement”
He mentioned nothing about these major misrepresentations and dug his heels in deeper claiming that board staff did indeed “retrieve and review those documents” and claims his “footnote representation remains uncompromised.” His footnote representations no longer remain uncompromised. At this point I’d say they are pretty compromised–the false contrivances are in actual fact shattered.
The off-point Bertram letter can be seen here: ( Attachment B (6) ) “Uncompromised is a poor choice of words Mr. Bertram as “shattered” or “demolished” would be more appropriate.
Bertram claimed agency level investigation confirmed documents were before the board in December of 2011
Reviewing Records and Minutes
These documents provide direct evidence of crimes (no other evidence is needed).
Bertram was also asked to address the “chain-of-custody error” misrepresentation. The documents show intentional fraud. This is no error. The laboratory fraud seen here is similar to that of Annie Dookhan but the documents here show both of the parties involved; a state physician health program and one of the labs contracted by state physician health programs nationwide. Precise and detailed documentation of forensic fraud was provided to a state attorney in 2011 but she concealed the documents. . I pointed this out to Bertram from the beginning and I also told him of all of the suicides that have occurred because of bogus tests just like this one. He did not seem to care. I notified him of another one here in Massachusetts; a good doctor and a good person who was also subject to falsified testing and injustice involving the same actors. I am hopeful that the transparency being provided here will lead to accountability. Both of these attorneys need to be held accountable.
An attorney must have a factual basis for alluding to, offering or relying on evidence and 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.
It is now established that no objective evidence exists. Not a shred of evidence exists.
Not a single date-point with a reliable timestamp is chronologically consistent with these documents being before the board.
Please donate to my Gofundme- At this point I really need funding to mount a quick and effective response to these new developments. Exposing these crooked attorneys would be a great step forward for all of PHP reform. Please help me out.