Howey, S. v. Public Health Commission (SPR 20140420)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords October 7, 2014 SPR14/420 Mr. Timothy J. Harrington, Esq. Acting General Counsel Boston Public Health Commission 1010 Massachusetts A venue Boston, MA 02118 Dear Attorney Harrington: I have received the petition of S. Howey appealing the response of the Boston Public Health Commission (Commission) to a request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, S. Howey requested copies of"the public documents of all Calls for Service Reports, all documents, all incident reports, all 911 audiotape calls, all log book entries, and everything in the file regarding the location of 1055 Commonwealth Avenue for March 12, 2014." In response you denied this request, citing the privacy clause to the Public Records Law. G. L. c. 4, § 7(26)(c). In this response you did not indicate whether any responsive records exist, and if so why the exemption applied to withhold all records. The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10(c); 950 C.M.R. 32.08(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 town of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). The Public Records Law states that "the burden shall be upon the custodian to prove with specificity the exemption which applies." G. L. c. 66, § 10(c) (emphasis added). See also Globe Newspaper Co. v. Police Cornm'r, 419 Mass. 852, 857 (1995); see also District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). A records custodian is expected to use his superior knowledge in responding to a request for public records. 950 C.M.R. 32.05(4). In our telephone conversation October 3, 2014 I asked whether the Commission had identified responsive records, and whether it could provide more specificity to meet these burdens. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Mr. Timothy J. Harrington, Esq. SPR14/420 Page Two October 7, 2014 In response to this call you provided a letter to this office, dated October 6, 2014 explaining to S. Howey that the Commission does possess responsive records, consisting of a "patient care report," as well as a "tape of two 911 calls." In your letter you stated that all records contain medical and other personally identifiable information, and would be withheld in their entirety. A review of Exemption (c) of the Public Records Law is therefore required. Exemption (c) Exemption (c) contains two distinct and independent clauses, each requiring its own analysis. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 432-33 (1983). The first clause, relevant to this determination, creates a categorical exemption for personnel and medical information that relates to an identifiable individual and is of a "personal nature." Id. at 434. Medical information that is of a personal nature and relates to a specifically named individual is exempt from disclosure. Brogan v. School Comm. of Westport, 401 Mass. 306, 308 (1987); Globe Newspaper Co., 388 Mass. at 438. Generally, medical information will always be of a sufficiently personal nature to warrant exemption. Globe Newspaper Company, 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 Medical Examiner, 404 Mass. 132, 135 (1987). Neither in the request nor in the response does it appear that the identity ofthe patient is known or could be reasonably identified. As such, the first clause of Exemption (c) does not apply to permit the Commission to withhold the responsive records entirely, as the records could be redacted to remove such information. Health Insurance Portability and Accountability Act of 1996 (HIPPA) In your letter you cited HIPP A, but did not state what section applies to require nondisclosure ofthe records in their entirety. Accordingly, I find the Commission has not met its burden under the law to permit such a withholding. To comply with the Public Records Law and Regulations a records custodian must provide specificity with respect to any denial of access to public records. This requires a records custodian to not only cite an exemption, but to specifically explain the applicability of the exemption to the requested records. Conclusion The Commission has not met its burden of specificity to explain why the records cannot be redacted in a manner to protect the privacy of the patient. Accordingly, the Commission is hereby ordered to remove medical and specifically identifiable information and provide the remainder ofthe records to S. Howey within ten (1 0) day ofthis order.

Mr. Timothy J. Harrington, Esq. SPR14/420 Page Three October 7, 2014 In the event a request for reconsideration is honored by this office an acknowledgment will be provided to all parties, followed by a written determination by this office, to be provided within fifteen (15) business days. Requests for reconsideration filed more than thirty (30) days after the date of this letter will not be considered. Supervisor of Records cc: S. Howey