Kassel, David v. Department of Public Health - Division of Health Care Facility Licensure and Recertification (SPR 20150108)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords April29, 2015 SPRlS/108 Mr. Sherman Lohnes Division of Health Care Facility Licensure and Certification Department of Public Health 99 Chauncy Street, 11th Floor Boston, MA 02111 Dear Mr. Lohnes: I have received the petition of David Kassel appealing the response of the Department of Public Health (Department). G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Mr. Kassel requested a copy of any report created by the Department regarding the death of a specifically identified individual. You denied his request, claiming that the Department cannot release the report pursuant to the requirements of the Fair Information Practices Act (FIP A). G. L. c. 66A, § 2(k). 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). 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(c); 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). 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 Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. You denied Mr. Kassel's request in its entirety, claiming that the Department cannot release medical or personal information in the responsive record unless it receives authorization from the data subject's authorized representative pursuant to the FIPA requirements contained in G. L. c. 66A, § 2(k). OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832. Fax (617) 727-5914 www.sec.state.ma. us/ pre

Mr. Sherman Lohnes SPR15/108 Page Two April 29,2015 The definition of "personal data" contained in FIP A expressly excludes information contained in a public record. G. L. c. 66A, § 1. FIPA and the Public Records Law are to be construed to work together consistent withthe legislative purpose. 32 Op. Atty Gen. Mass. 157, 160 (May 18, 1977). FIP A 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) (stating that "determining whether the record sought is protected by FIP A 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"). Your response states that the requested report contains medical and personal information regarding the deceased individual. While the medical information contained in the report may be exempt from disclosure pursuant to an exemption under the Public Records Law, the Department's response failed to cite an exemption and explain its applicability to the requested record. The Department also failed to explain with specificity how the "personal information" and any other information within the responsive report falls within an exemption to the definition of public records. FIPA, by itself, cannot justify withholding the entire report. 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, FIP A may also operate to restrict disclosure. The Department has not proved that the responsive report contains "personal data" as defined by FIP A because it did not explain how the information within the report is exempt from the definition of public records. Therefore, the Department has not proved how the requirements of G. L. c. 66A, § 2(k) are applicable to the requested records. As a result, the Department failed to meet its burden of explaining with specificity how the report, in its entirety, is exempt from disclosure. See Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979) (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, § 1O (a). Accordingly, the Department is hereby ordered, within ten 10) days ofthis order, to provide Mr. Kassel with requested records. If the Department rna· tains that any portion of the responsive records are exempt from disclosure it must, within te 10 ) days, provide to Mr. Kassel a written explanation, with specificity, how a part' lar e emption applies to each record. cc: Mr. DavidS. Kassel