S. Howey v. Public Health Commission (SPR 20160574)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords August 8, 2016 SPR16/574 Mr. Timothy J. Harrington, Esq. Boston Public Health Commission 10 10 Massachusetts A venue Boston, MA 02118 Dear Attorney Harrington: I have received the petition of S. Howey appealing the response of Boston Public Health Commission (Commission) to a request for public records. G. L. c. 66 § 1 O(b ); see also 950 C.M.R. 32.08(2). Specifically, on July 3, 2016 S. Howey requested copies of Boston Emergency Medical Services (Boston EMS) records related to 1055 Commonwealth Avenue in Boston from January 1, 2015 to the present. In a response dated June 30, 2016 the Commission denied this request citing to Exemption (c), the privacy exemption of the Public Records Law and the Health Insurance Portability and Accountability Act of 1966 (HIPP A). The Public Records Law 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. 5 07, 511 (199 5) (custodian has the burden of establishing the applicability of an exemption). 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 record. 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 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. SPR16/574 Page 2 August 8, 2016 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 of patients is known or could be reasonably identified. As such, I find the Commission has not met its burden of specificity with respect to the first clause of Exemption (c). Further, the Commission has failed to explain why any information, even if it does exist, could not be redacted. 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 of the 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. Order I find the Commission has failed to respond to a request for public records. Accordingly, the Commission is hereby ordered to provideS. Howey with a response to the request, prepared in a manner consistent with this order, the Public Records Law and its Regulations. A copy of any such response must 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. cc: S. Howey