Citizens v. Public Health Commission (SPR 20160747)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords DATE, 2016 SPR16/747 Mr. Timothy J. Harrington, Esq. General Counsel Boston Public Health Commission 101 0 Massachusetts A venue Boston, MA 02118 Dear Attorney Harrington: I have received the petition of a requester appealing the response of the Boston Public Health Commission (Commission) to a request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, the requester, identified in by email only as "Citizens" requested "all Computer Aided Dispatch Transcripts (CADs), Calls for Service Reports, all incident reports, all police reports, all audio files for 911 calls, all log book entries, all 911 documents" pertaining to a specific address from March 1, 2016 to September 12,2016. In a response dated September 14, 2016 you denied this request, citing Exemption (c) ofthe Public Records Law G. L. c. 4, § 7(26)(c). 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. 507, 511 (1995) (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 of the responsive record. 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. SPR16/747 Page 2 September 30, 2016 The Commission's September 14 response Exemption (c) In the Commission's September 14 response you indicate the Commission has a responsive "patient care report" or "PCR" as well as a tape of responsive 911 calls. You claim the requested documents may be withheld under Exemption (c) "because such documents constitute 'medical files or information' and 'materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of privacy." Exemption (c) of the Public Records Law permits the withholding of: personnel and medical files or information; also any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy G. L. c. 4, §7 (26)(c) Exemption (c) contains two distinct and independent clauses, each requiring its own analysis. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427,432-34 (1983). Only the second clause of Exemption (c) is applicable to this determination. Analysis under the second clause of Exemption (c) is subjective in nature and requires a balancing of the public's right to know against the relevant privacy interests at stake. Torres v. Attorney Gen., 391 Mass. 1, 9 (1984); Attorney Gen. v. Assistant Comm'r of Real Property Dep't, 380 Mass. 623, 625 (1980). The second clause of Exemption (c) applies only to information "relating to a specifically named individual" (emphasis added). The clause applies only to such information, the disclosure of which would constitute "intimate details of a highly personal nature." See G. L. c. 4, § 7 (26) (c). See also Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 438 (1983). Once it is determined that a record contains information related to a "specifically named individual," a records custodian must perform a two-step analysis to determine whether the record may be withheld from disclosure pursuant to the second clause of Exemption (c). First, the records custodian must determine whether the specifically-identifying information constitutes an "intimate detail of a highly personal nature." If the information regarding a "specifically named individual" is deemed to be an "intimate detail," the records custodian must then consider whether the privacy interests of the specifically identified individual in the responsive records outweigh the public interest in disclosure ofthis information. See Attorney General v. Collector of Lynn, 377 Mass. 151, 156 (1979). The obligation to establish the conditions required by this exemption lies solely with the records custodian.

Mr. Timothy J. Harrington, Esq. SPR16/747 Page 3 September 30, 2016 You explain that "[i]n the PCR, Boston EMS provides the patient's name, date ofbirth, as well as a very specific description of the patient's medical condition and treatment rendered by EMS. The report and its contents are confidential protected health information." You further explain "[l]ike the PCRs, the calls include a description of the patients medical condition and date of birth." You claim "a report with a patient's name redacted or the 911 calls would still include enough information to identify the patient." However, it is unclear based on the Commission's September 14 response how the identity of a "specifically named individual" would be provided in disclosure of the records, even in redacted form. 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, § lO(a). I find the Commission has failed to satisfy the requirements under the Public Records Law to establish the need to withhold all responsive records from March 1, 2016 to September 12, 2016 pursuant to Exemption (c). The Commission has failed to establish how disclosure of the responsive records in a redacted form would serve to provide Citizens with any information regarding a "specifically named individual." Health Insurance Portability and Accountability Act of 1996 (HIP PA ) 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. Order I find the Commission has failed to satisfy its statutory obligation to state the applicability of its cited exemption to the responsive records. Accordingly, the Commission is hereby ordered to provide Citizens with a revised response to the request, prepared in a manner consistent with this order, the Public Records Law and its Regula · ns. A copy of any such response must be provided to this office. It is preferable to send electronic copy of this response to this office at pre@sec.state.ma.us. cc: Citizens