Citizens v. Public Health Commission (SPR 20160876)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords October 24, 2016 SPR16/876 Timothy J. Harrington, Esq. General Counsel Boston Public Health Commission 1010 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 § lO(b); see also 950 C.M.R. 32.08(2). Specifically, the requester, identified 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. Previous appeal This request was the subject of a previous appeal. See SPR16/747 Determination of the Supervisor of Records (September 30, 2016). In my September 30 determination I found the Commission 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." I ordered the Commission to provide Citizens with a revised response to the request, prepared in a manner consistent with this order, the Public Records Law and its Access Regulations. The Commission responded to the order in a letter dated October 14, 2016. Subsequently, Citizens informed this office that it seeks further action with respect to this matter and this appeal (SPR16/876) was opened as a result. 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, § lO(c); 950 C.M.R. 32.08(4). "Public records" is broadly defined to include all documentary materials or data, regardless of physical One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre• pre@sec.state.ma.us

Timothy J. Harrington, Esq. SPR16/876 Page 2 October 24, 2016 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. The Commission's October 14 response In the Commission's October 14 response, you indicate Boston EMS responded to the location in question on four (4) occasions and "transported patients from that address." As a result, the Commission has responsive "patient care reports" or "PCRs" as well as a tape of responsive 911 calls. You further explain that the Commission is withholding the responsive records pursuant to the Health Insurance Portability and Accountability Act of 1996 (HIP AA) as it operates through Exemption (a), the statutory exemption and Exemption (c) of the Public Records Law. G. L. c. 4, § 7 (26) (a), (c). Exemption (c) You claim the responsive records constitute "medical files or information" that is exempt pursuant to Exemption (c) of the Public Records Law. G. L. c. 4, § 7 (26)(c). 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) This exemption 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 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.

Timothy J. Harrington, Esq. SPR16/876 Page3 October 24, 2016 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). You explain that "[i]n the PCR, Boston EMS provides the patient's name, date of birth, 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 patient's 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." You explain that "because of the particularly sensitive information and the amount of information about incidents at this location made available on the internet. .." there is clearly a risk that the patients involved in the incident could be identified by disclosure of any portion of the responsive records. I find that the Commission has now met its burden to withhold responsive records under the first clause of Exemption (c). As such, I decline to opine upon the applicability of the specified provision of HIP AA as it operates under Exemption (a) of the Public Records Law, or the other issues presented in your letter. cc: Citizens