Colman Herman v. Executive Office of Elder Affairs (SPR 20161012)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A Williams Supervisor of Records December 13, 2016 SPR16/1012 Siobhan Coyle, Esq. Deputy Legal Counsel Executive Office of Elder Affairs One Ashburton Place, 5th Floor Boston, MA 02108 Dear Attorney Coyle: I have received the petition of Colman Herman appealing the response of the Executive Office of Elder Affairs (EOEA) to a request for public records. G. L. c. 66 § lO(b); see also 950 C.M.R. 32.08(2). Specifically, Mr. Herman requested records associated with assisted living incident reports. Previous appeal This request was the subject of a previous appeal. See SPR16/463 Determinations of the Supervisor of Records (July 14, 2016; October 7, 2016). In my October 7 determination, I ordered EOEA to provide a revised written response to Mr. Herman, prepared in a manner consistent with this order, the Public Records Law, its Access Regulations (Regulations) and applicable case law. In compliance with my order, EOEA provided an October 26 EOEA provided additional information to Mr. Herman. Mr. Herman sought clarification from EOEA and EOEA provided a supplemental letter dated November 8. Mr. Herman appealed. Current appeal In its October 26 response EOEA indicates it provided Mr. Herman "the length of time (in days) between the date of the incident and EOEA's receipt of the associated incident report" and "is refunding the fee Mr. Herman previously paid to cover the administrative cost of his initial public records request." EOEA also explains it "reaffirms its position that the additional information requested by Mr. Herman is exempt from release pursuant to the second clause of G.L. c. 4, § 7(26)(c) as such information could be used in combination with other available data to indirectly identify data subjects." 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

Siobhan Coyle, Esq. SPR16/1012 Page 2 December 13, 2016 "Parties Notified" and "Incident Headline" sections In correspondence dated November 16, 2016, Mr. Herman indicates EOEA is unable to explain what "code numbers or abbreviations" mean under the section of the charts labeled "Incident Headline." He also explains that "in many cases the section labeled 'Parties Notified' was blank" but, similar to the "Incident Headline" section, this was information EOEA "agreed to provide." EOEA addresses the "Parties Notified" and "Incident Headline" inquiries in its November 8 letter. With respect to the "Parties Notified" issue, you explain "[i]f a section of the incident report is blank, that is an indication that the ALR [Assisted Living Residences] in question did not submit information to EOEA." With respect to the "Incident Headline" issue, you explain "[t]he information entered by the ALRs are not codes required by the EOEA and are used by the ALRs for their internal reporting systems." Calculation off ractional days In his appeal petition dated November 9, 2016 Mr. Herman asks this office to order EOEA "perform the fractional calculations" of the number of days it took the assisted living residences to submit the incident reports to EOEA for certain categories of incidents or "[p ]rovide the date of each incident, the time of each incident, and the date each incident was submitted to [EOEA], which is what [EOEA] originally agreed to do." In your November 8 letter you also explain "EOEA has no responsive documents available that indicate the time period in question in fractional amounts of days. The totals listed refer to calendar days." In an email dated December 9, 2016, you indicate that EOEA's "computer system is not designed to calculate fractional day information and does not have that functionality." You also explain "[r]eports denoted as "O" days indicate that the reports were submitted the same calendar day, while reports with positive numbers indicate the number of calendar days the report was filed after the incident in question." Records in existence Under the Public Records Law, the duty to comply with requests for information extends only to those records that exist and are in the custody of the custodian of records at the time of the request. See G. L. c. 4, § 7(26); 32 Op. Atty Gen. 157, 165 (May 18, 1977). I find EOEA has met its burden of responding to Mr. Herman's request for information pertaining to "Incident Headline," "Parties Notified," and the "calculation of fractional days." Date and time of incidents Exemption (c) EOEA cites Exemption ( c) to justify the redaction of information related to the date and

Siobhan Coyle, Esq. SPR16/1012 Page 3 December 13, 2016 time of the incidents. It must be noted that at no time did Mr. Herman request any specifically identifying information regarding the persons noted in the incident records. Exemption (c) of the Public Records Law, also known as the privacy exemption, 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 ofa 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 of this 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. In EOEA's October 26 response, Attorney Matthew Casey, General Counsel, indicates the responsive incident reports are required by regulation to be submitted to EOEA "after the occurrence of an incident of accident that 'has or may have a Significant Negative Effect on a resident's health, safety or welfare .. .'" Attorney Casey claims "[w]hen an individual's name is omitted or removed from an incident report, there remains a risk that the individual could be indirectly identified through other available information." He cites several cases in support of this position, including Logan v. Comm'r of the Dep't oflndus. Accidents, 68 Mass. App. Ct.

Siobhan Coyle, Esq. SPR16/1012 Page4 December 13, 2016 533, 536 (2007) and Hardiman v. Dep't of Dev. Servs., Suffolk Superior Court, No. 2014-01561- H (March 3, 2016). I understand an attorney on my staff contacted you about this matter. You indicated EOEA will provide another response to the requestthat includes an explanation of how release of the withheld information, consisting of "the date of the incident, time of incident and date inserted into the chart" redacted from the narrative of each incident would serve in the aggregate to disclose the identity of any specifically identified individual. Conclusion Whereas EOEA intends to provide a supplemental response to Mr. Herman regarding this matter, I will consider this appeal closed with the proviso that EOEA provide Mr. Herman with a response to the request, provided 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: Colman Herman