Vanessa M. Brown, Esq. v. Executive Office of Health and Human Services - Department of Mental Health (SPR 20170409)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords April 12, 2017 SPR17/409 Debra Leggett Records Access Officer Department of Mental Health 25 Staniford Street Boston, MA 02114-2575 Dear Ms. Leggett: I have received the petition of Vanessa Brown, Esq. of Morgan, Lewis, & Bockius LLP, representing her client Boston Globe Media Partners, LLC appealing the response of the Department of Mental Health (Department) to a request for public records. G. L. c. 66 § lOA; see also 950 C.M.R. 32.08(1). Specifically, Ms. Brown's client requested "thirteen (13) videos used in Department of Mental Health investigations of incidents at psychiatric hospitals in the Arbour Health System." In a letter dated March 10, 2017 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, § lOA(d); 950 C.M.R. 32.03(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, § 1 O(b )(iv); 950 C.M.R. 32.06(3); see also Dist. 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, § 1 O(b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. 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

Debra Leggett SPR17/409 Page 2 April 12, 2017 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. Public Records Division attorneys are available during regular business hours to answer general questions regarding the Public Records Law. In addition, Public Records Division staff will visit a records custodian in person to conduct training workshops on the Public Records Law upon request. Please contact the Public Records Division directly at the telephone number provided in this determination for further information. The Department's March 10th response In its response dated March 10t\ the Department indicates "[t]o the extent that DMH possesses records responsive to your request, such records are withheld from production because they are subject to an exemption" under the Public Records Law. The Department continues by explaining its position that the videos "include images of patients in service at the psychiatric hospitals in the Arbour Health System and are therefore not public records under two specific exemptions to the definition of public records under the law. G.L. c. 4, sec. 7(26) (a) and (c)." The Department cites G.L. c. 123, § 36 and the Health Insurance Portability and Accountability Act (HIP AA) in support of its position. Possession of responsive records; segregable portions Based on the Department's response, it is unclear if it possesses responsive records. The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian ofrecords at the time of the request. See G. L. c. 66, § lO(a)(ii). Therefore, the Department must clarify whether it possesses any responsive records. Further, it is unclear how any responsive records, in their entirety, are exempt from disclosure. The Department must explain whether any non-exempt, segregable portion of the responsive records can be provided. See G. L. c. 66, § lO(a); 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). I understand a member of my staff contacted you and provided a copy of the file associated with this appeal. You indicated the Department would provide a supplemental response. Conclusion Accordingly, I will consider this appeal closed with the proviso that the Department provide Attorney Brown with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this

Debra Leggett SPR17/409 Page 3 April 12, 2017 response to this office at pre@sec.state.ma.us. Sincerely, Rebecca S. Murray Supervisor of Records cc: Vanessa M. Brown, Esq.