Burrell, Chris v. Executive Office of Health and Human Services - Department of Mental Health (SPR 20150882)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords January 8, 2015 SPRlS/882 Ms. Debra Leggett, Esq. Deputy General Counsel Director of Privacy & Data Access Department of Mental Health 25 Staniford Street Boston, MA 02114-2575 Dear Attorney Leggett: I have received the petition of Christopher Burrell of The Patriot Ledger appealing the response of the Department of Mental Health (Department) to his request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Mr. Burrell requested an investigation report concerning the death of a patient at Pembroke Hospital. The Department provided Mr. Burrell with the report with certain of the information redacted from the content of the report. Initially, the Department's Director of Communications, Rhonda Mann informed Mr. Burrell in a November 29, 2015 email that the report was redacted to protect personal health information and other personal information. Mr. Burrell appealed stating in his November 20, 2015 email petition to this office, "while health information, it's unclear to me why this basic fact (rigor mortis) would be redacted when other aspects of the woman's health information are disclosed." Appeal to the Supervisor In the event that a person requesting any record in the custody of a governmental entity is denied access, or in the event that there has not been compliance with any provision of 950 C.M.R. 32.00, the requester may appeal to the Supervisor within ninety (90) days. Such appeal shall be in writing, and shall include a copy of the letter by which the request was made and, if available, a copy of the letter by which the custodian responded. The Supervisor shall accept an appeal only from a person who had made his or her record request in writing. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax {617) 727-5914 www.sec.state.ma. us/pre

Ms. Debra Leggett, Esq. SPR15/882 Page2 January 8, 2016 When filing his petition for an appeal with this office, Mr. Burrell provided the redacted report, however he neglected to provide a copy of his original public records request and the initial written response from the Department. Therefore for future appeals, Mr. Burrell is reminded to provide this office with a copy of his written request and any response from the records custodian when he seeks an administrative appeal. The Public Records Law strongly favors disclosure by creating a presumptionthat 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). Initially, the Department did not provide a cover letter or index to explain what information had been redacted from the report. In a December 17, 2015 telephone discussion with you and the Department's General Counsel Lester Blumberg, an attorney on my staff explained that the Department had failed to meet its burden of properly claiming exemptions in the Public Records Law to support the redactions in the report provided to Mr. Burrell, and that a letter or index must be sent to Mr. Burrell. In a December 29, 2015 letter to this office, you explained that the Department redacted health and medical information as well as personally identifiable information from the report pursuant to the Health Insurance Portability and Accountability Act, the Fair Information Practices Act, the Massachusetts Code of Regulations applicable to the Department and the first clause of Exemption (c) of the Public Records Law. While this office was provided with the exemption claimed and a basic understanding of what information has been redacted under those exemptions, the Department has not met its burden of explaining the redactions to Mr. Burrell. Therefore, the Department must provide Mr. Burrell with a detailed response concerning the redacted information. I find the Department has failed to meet its burden of properly responding to a request for public records. Accordingly, the Department is hereby ordered, within ten (10) days ofthis order, to provide Mr. Burrell with a detailed response concerning the redactions in the investigation report consistent with this order, the Public Records Law and its Regulations. If the Department continues to maintain that portions of the responsive report are exempt from disclosure under the exemptions in its December 29 letter, it must provide Mr. Burrell with an explanation, with specificity, how a particular exemption applies to each redacted portion of the report. To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion ofthe responsive

Ms. Debra Leggett, Esq. SPR15/882 Page 3 January 8, 2016 record. A copy of any such response must also be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. To assist the Department in responding to requests for public records I have enclosed a copy of our publication, A Guide to the Massachusetts Public Records Law. This document is also available on the Internet, free of charge, at http://www.sec.state.ma.us/pre/prepdf/guide.pdf. Attorneys on my staff are available during regular business hours to answer general questions regarding the Public Records Law. In addition, members of my staff will visit a records custodian in person to conduct training workshops on the Public Records Law upon request. Please contact my office directly at the telephone number belo for further information. cc: Mr. Chris Burrell Mr. Lester Blumberg, Esq.