Ibarguen, Esq., Diego v. Department of Public Health (SPR 20150306)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor of& cords August 13, 2015 SPRlS/306 Mr. Scott Zoback Interim Director of Communications Massachusetts Department of Public Health 250 Washington Street · Boston, MA 02108-4619 Dear Mr. Zoback: I have received the petition of Hearst Corporation Counsel Diego Ibargiien appealing the response of the Department of Health (Department) to a public records request by Jonathan Wells, 5 Investigates Producer for Hearst Corporation's WCVB-TV 5 in Boston. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Mr. Wells requested copies of records that "show the 50 physicians who were the largest prescribers of opiate prescription drugs in the state in each of the last three years." The Department denied this request, citing Section 24A ofthe Controlled Substances Act as it operates pursuant to Exemption (a) of the Public Records Law. G. L. c. 4, § 7 (26) (a); G. L. c. 94C, § 24A. 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). OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Mr. Scott Zoback SPR15/306 Page Two August 13,2015 Exemption (a) The Department cited section 24A of the Controlled Substances Act in denying Mr. Wells' request for records. Therefore, Exemption (x) merits consideration. It allows withholding of those records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, §7 (26) The relevant portion of the Controlled Substances Act requires "each pharmacy" to "submit to the department, by electronic means, information regarding each prescription dispensed." G. L. c. 94C, §24A (c). The statute further states that such "[p]rescription information submitted to the department under this section shall be confidential and exempt from disclosure under clause Twenty-sixth of section 7 of chapter 4 and chapter 66." G. L. c. 94C, §24A (d). Both in the response to the request and in conversations with members of my staff the Department states its intention to preserve the privacy of patients. In his appeal Attorney Ibargi.ien states that the request is not meant to include any such patient information. I find this argument not relevant, as the statute clearly states that the "information submitted to the department" is confidential in its entirety, whether patient information is included or not. Accordingly, I find the Department acted properly in denying thi. request for public records. aw Supervisor of Records cc: Mr. Diego Ibargi.ien, Esq.