Colman Herman v. Executive Office of Elder Affairs (SPR 20170062)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords January 26, 2017 SPR17/062 Siobhan Coyle, Esq. Deputy Legal Counsel Executive Office of Elder Affairs One Ashburton Place, 5th Floor Boston, MA 021 08 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 § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Herman requested records associated with assisted living incident reports regarding two (2) categories of incidents. Previous appeal This request was the subject of previous appeals. See SPR16/463 Determinations ofthe Supervisor of Records (July 14, 2016; October 7, 2016); SPR1611012 Determination of the Supervisor of Records (December 13, 2016). This office closed SPR1611012 with the proviso that EOEA provide Mr. Herman with a response to the request, provided in a manner consistent with the order, the Public Records Law and its Regulations. EOEA provided a response dated January 9, 2017 and Mr. Herman appealed. Current appeal It is my understanding that Mr. Herman received a chart containing the following information: residence name, the city in which the residence is located, type of incident, an incident headline, an incident narrative, parties notified, and the length of time between the date of the incident and EOEA's receipt of the associated incident report. The categories of information at issue in the current appeal are the following: the date of the incident, the time of incident and the dates the report was submitted to EO EA. In your January 9th letter you reiterate EOEA's position that this information is exempt from disclosure under the second clause of Exemption (c) of the Public Records Law. 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. SPR17/062 Page2 January 26, 2016 Creation ofa record; applicability ofa n exemption In his appeal petition, Mr. Herman indicates EOEA initially offered to provide a chart that contained the date and time of the incidents as well as the dates the reports were submitted to EOEA. Mr. Herman explains EOEA "offered to create a record" in response to his request that included the date of the incident, time of incident and the date the report was submitted to EOEA. He explains he is seeking what EOEA offered to provide him what he paid to obtain. It should be noted that in its October 26, 2016 response EOEA explained it refunded "the fee Mr. Herman previously paid to cover the administrative cost of his initial public records request." "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). The duty to comply with requests for information under the Public Records Law extends only to those records that exist and are in the custody of the custodian of records at the time of the request. See id. EOEA's initial offer to provide certain information does not preclude it from subsequently claiming this information falls under an exemption to the Public Records Law. Therefore, I will now analyze EOEA's Exemption (c) claim. Exemption (c) EOEA cites Exemption (c) to justify the withholding of information related to the date and time ofthe incidents as well as the dates the reports were submitted to EOEA. 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). Therefore, determinations must be made on a case by case basis. This clause does not protect all data relating to specifically named individuals. Rather, it only permits· custodians of records to withhold "intimate details of a highly personal nature" while requiring a balancing of the public's right to know against the relevant privacy interests at stake. Real Prop. Dep't, 380 Mass. at 625. The types of personal information which the second clause of this exemption is designed to protect includes: marital status, paternity, substance

Siobhan Coyle, Esq. SPR17/062 Page 3 January 26, 2016 abuse, government assistance, family disputes and reputation. Id. at 626 n. 2; see also Doe v. Registrar of Motor Vehicles, 26 Mass. App. Ct. 415,427 (1988) (holding that a motor vehicle licensee has a privacy interest in disclosure of his social security number). 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." 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). In EOEA's October 26th 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 EOEA's position that it must consider whether release of the information, in the aggregate could allow a person "familiar with the individual" to identify the subjects of the reports. See Logan v. Comm'r of the Dep't oflndus. Accidents, 68 Mass. App. Ct. 533, 536 (2007) and Hardiman v. Dep't ofDev. Servs., Suffolk Superior Court, No. 2014-01561-H (March 3, 2016). In EOEA's January 9th letter you explain "[b]ecause incident reports exist only to report on the condition of an ALR resident, the information they contain includes information of a highly personal nature and therefore may constitute an unwarranted invasion of personal privacy." You also state "[i]ncident reports by their very nature include information that is unusual, possibly traumatic, and typically intensely personal." You indicate "[t]he narrative ofthe incident and location where it occurred has already been provided to the requester" and it is EOEA's position that "if the date of the incident were provided, in combination with the above information, it is highly likely that anyone familiar with the resident in question would be able to identify he or she was the subject of the incident report." You claim that by releasing this information to Mr. Herman "anyone with knowledge of the event-including family members, friends, neighbors, physicians, health care specialists, other ALR residents, and employees of the ALR-could affirmatively identify the individual in question and attribute the personal details of the incident report to him or her." I find the EOEA has met its burden to show how the release of information related to the date and time of the incidents as well as the dates the reports were submitted to EOEA, combined with the information already provided to Mr. Herman, creates a risk of indirectly identifying individuals in the reports. See Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 438 (1983) (identifying information is considered not only from the viewpoint of the public, but also from the vantage of those who are familiar with the individual).

Siobhan Coyle, Esq. SPR17/062 Page4 January 26, 2016 Due to the risk of identifying individuals, coupled with the fact that the records previously provided to Mr. Herman, in particular the narratives of the incidents, include information that is "unusual, possibly traumatic, and typically intensely personal," I find EOEA has met its burden of explaining how this information constitutes "intimate details of a highly personal nature" attributable to a specific individual. I find the privacy interests in this matter outweigh the public's interest in disclosure and that the substantial public interest has been satisfied by the previous release of information. Accordingly, I find EOEA has met its burden to withhold the date and time of the incidents as well as the dates the reports were submitted to EOEA pursuant to the second clause ofExemption (c). Sincerely, ~lt.etta fl1ucttt1l{ __ _ 0 Rebecca S. Murray Supervisor of Records cc: Colman Herman