Andrew McIsaac v. Executive Office of Health and Human Services - Department of Mental Health (SPR 20161221)

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

Rebecca S. Murray Supervisor of Records

December 29, 2016 SPR16/1221

Misael Garcia

Paralegal

Department of Mental Health 25 Staniford Street

Boston, MA 02114

Dear Mr. Garcia:

I have received the petition of Andrew Mclsaac appealing the response of the Department of Mental Health (Department) to a request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Mr. MclIsaac requested a copy of “all Application[s] for an Authorization of Temporary Involuntary Hospitalization forms generated in November 2016 by Cape & Islands Emergency Services.” In a response dated December 22, 2016, the Department denied access to responsive records under Exemptions (a) and (c) of the Public Records Law. G. L.c. 4, § 7(26)(a),(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.

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

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

Misael Garcia SPR16/1221 Page 2 December 29, 2016

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.

In the Department’s December 22 email, you indicate it is withholding responsive records under Exemption (c) as well as other statutes that operate through Exemption (a), including the Health Insurance Portability and Accountability Act (HIPAA), G.L. c. 66A, and G.L. c. 123, §36. The Department does not cite a specific section of HIPAA or G.L. c. 66A in support of its denial.

To meet its specificity requirement the Department must not only cite an exemption or statute, but must also explain how they apply to the withheld or redacted portion of the responsive record. Further, it is unclear whether it is possible to redact any personally identifying information and provide any non-exempt, segregable portion of the records. 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, § 10(a). I understand a member of my staff contacted you and provided a copy of the file associated with this appeal.

Order

Accordingly, the Department is hereby ordered to provide Mr. Mclsaac with a revised response, 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.

Sincerely,

Klerco Muay —

Rebecca S, Murray Supervisor of Records

ec: Andrew Mclsaac