Colman Herman v. Executive Office of Health and Human Services - Board of Registration in Medicine (SPR 20161172)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division

Shawn A, Williams Supervisor of Records

December 23, 2016 SPR16/1172

Robert E. Harvey, Esq.

Board Counsel — Records Access Officer Board of Registration in Medicine

200 Harvard Mill Square, Suite 330 Wakefield, MA 01880

Dear Attorney Harvey:

I have received the petition of Colman Herman appealing the response of the Board of Registration in Medicine (BORIM) to a request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Mr. Herman requested a copy of emails related to a disciplinary case involving a specifically named physician. BORIM, after determining it possessed responsive email records, denied Mr. Herman’s request. See G. L. c. 233, § 20B; G. L. c. 4, § 7 (26) (a). Mr. Herman appealed.

Previous appeals

This request was the subject of previous appeals. See SPR16/901 Determination of the Supervisor of Records (October 26, 2016); SPR16/982 Determination of the Supervisor of Records (November 23, 2016). I closed SPR16/982 with the proviso that BORIM provides Mr. Herman with a response prepared a manner consistent with the order, the Public Records Law and its Regulations.

BORIM responded in a letter dated December 9, 2016 in which it continues to withhold the entirety of the responsive records. Mr. Herman petitioned this office and this appeal (SPR16/1172) was opened.

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).

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

Robert E. Harvey, Esq. SPR16/1172 Page 2 December 23, 2016

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.

If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(a); see also 950 C.M.R. 32.06(2) (where cost of complying with a request for public records is expected to exceed ten dollars ($10.00), custodian of records shall provide written good faith estimate). Once fees are paid, a records custodian must provide the responsive records.

To assist in requesting and responding to requests for public records please refer to our publication, A Guide to the Massachusetts Public Records Law. This document is 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 provided in this determination for further information.

Current appeal

In responses dated October 26, 2016 and December 9, 2016, BORIM claims the entirety of the responsive records may be withheld under G. L. c. 233, § 20B as it operates through Exemption (a). BORIM also claims Exemption (c) to withhold the records.

Exemption (a)

Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute

G.L. c. 4, §7 (26)(a)

A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public’s right to inspect records under the Public Records Law is restricted. See Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977).

This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that

Robert E. Harvey, Esq. SPR16/1172 Page 3 December 23, 2016

such a record either “shall not be a public record,” “shall be kept confidential” or “shall not be subject to the disclosure provision of the Public Records Law.”

The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities.

Exemption (c) Exemption (c) 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)

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. 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).

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). Therefore, determinations must be made on a case by case basis. This clause requires a records custodian to perform a two-step analysis to determine whether the record may be withheld from disclosure. First, the records custodian must determine whether the information constitutes an “intimate detail of a highly personal nature” regarding a specific individual. If so determined, then the records custodian must consider whether the privacy interests of the individual outweigh the public interest in disclosure of this information. See Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 156 (1979).

Segregable portion

BORIM must meet its burden of explaining with specificity how the records, in their entirety, are exempt from disclosure. 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).

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Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). I understand an attorney on my staff contacted you and you indicated BORIM would provide another response regarding this matter.

Conclusion

Accordingly, I will consider this appeal closed with the proviso that BORIM provide Mr. Herman with a response to the request without delay, 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.

A. Williams isor of Records

cc: Colman Herman