Lizbeth Kowalczyk v. Department of Mental Health (SPR 20170561)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords May 9, 2017 SPR17/561 Misael Garcia Paralegal Department of Mental Health 25 Staniford Street Boston, MA 02114 Dear Mr. Garcia: I have received the petition of Lizbeth Kowalczyk of The Boston Globe appealing the response of the Department of Mental Health (Department) to a request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(1 ). Specifically, Ms. Kowalczyk requested a copy of "all complaints and inspection reports regarding Westwood Lodge psychiatric hospital during February 2017, including any emails among DMH and the hospital during that month about problems at the hospital." In a response dated March 30, 2017 the Department provided responsive records, but redacted and/or withheld portions of the records under Exemptions (a) and (c) of the Public Records Law as well as the attorney-client privilege. G. L. c. 4, § 7(26)(a), (c); G.L. c. 66A; G.L. c. 123 § 36; 45 CFR 164.502. 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, § lO(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. 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 SPR17/561 Page 2 May 9, 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. Current appeal In Attorney Emma Diamond Hall's appeal petition on behalf of Ms. Kowlczyk, she explains "[t]he Globe does not object to the redaction of patients' names or unique identifiers pursuant to the 'medical files' clause of Exemption (c)." However, she explains the Globe objects to the redaction of the identities of "non-patients," including "executives' names or place of employment," "information relating to hospital staff and employees," and "information relating to private employees, such as a new hire and would also include a resume." It appears the Globe does not object to the withholding of records under the attorney-client privilege. Provision ofc orresponding numbers In its appeal petition the Globe also "requests that the Department replace each redacted employee name with a corresponding number ... to allow the public to identify whether certain employees have been the subject of multiple complaints or disciplinary actions." Under the Public Records Law, the Department is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d); 32 Op. Atty Gen. 157, 165 (May 18, 1977). 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 is not required to replace employee names with a corresponding number under the Public Records Law. Applicability ofe xemptions In its March 30th response the Department explains "[t]he records you are requesting are generated as the result of Corrective Action Plans. Some of the information detailed in the records are parts of patients' medical record, employee personnel record, and other personal information which are not public records under two specific exemptions to the definitions of public records under the law: G. L. c. 4, § 7(26)(a) and (c)." Exemption (a) The Department cites G.L. c. 123 § 36 and 45 CFR 164.502 as they operate through Exemption (a) to justify certain redactions. The Department is advised that it must provide any

Misael Garcia SPR17/561 Page 3 May 9, 2017 segregable portion of the responsive records, in particular, information that would not identify a patient. 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 ). 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). Exemption ( c) contains two distinct and independent clauses, each requiring its own analysis. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 432-33 (1983). The first clause 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). The Supreme Judicial Court of Massachusetts found that a records custodian may withhold from disclosure as personnel information records containing information that is "useful in making employment decisions regarding an employee." Wakefield Teachers Ass'n v. School Comm., 431 Mass. 792, 798 (2000). The courts have discussed specific categories of records that may be redacted under the first clause. See Globe Newspaper Co v. Exec. Office of Admin. and Finance, Suffolk Sup. No. 11-01184-A (June 14, 2013). Nevertheless, there is a strong public interest in monitoring public expenditures and public employees have a diminished expectation of privacy with respect to public employment matters. See George W. Prescott Publishing Co. v. Register of Probate for Norfolk County, 395 Mass. 274,278 (1985); Globe Newspaper Co., 388 Mass. at 436 n.15. Further, the public has an interest in knowing whether public employees are "carrying out their duties in an efficient and law-abiding manner." Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 158 (1979). As a result, certain information that is considered personal in the ordinary sense of the word may be considered part of a public record if relating to an individual's official responsibilities. See Brogan v. School Comm. of Westport, 401 Mass. 306, 309 (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.

Misael Garcia SPRl 7/561 Page4 May 9, 2017 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 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). Fair Information Practices Act The Department also cites the Fair Information Practices Act (FIP A) in support of its position to redact "information that identifies private individuals, such as names, telephone numbers, and resumes." It should be noted that FIPA and the Public Records Law are to be construed to work together consistent with the legislative purpose. 32 Op. Atty Gen. Mass. 157, 160 (May 18, 1977). FIP A cannot provide a basis for withholding the requested information unless the records fall within a statutory exemption to the definition of public records. See Allen v. Holyoke Hosp., 398 Mass. 372,379 (1986) (stating that "determining whether the record sought is protected by FIP A depends on whether the record is a public record pursuant to G.L. c. 4, §7 Twenty-sixth, and subject to the disclosure provisions of G.L. c. 66A"). FIP A, by itself, cannot justify withholding information. A custodian must first specifically explain how the withheld information is exempt from the Public Records Law. Once a record is found to be exempt from the definition of public records, FIP A may also operate to restrict disclosure. See Flatley, 419 Mass at 511 ( custodian has the burden of establishing the applicability of an exemption). I find the Department has not met its burden of specificity to redact the identities of "non patients," including "executives' names or place of employment," "information relating to hospital staff and employees," and "information relating to private employees, such as a new hire and would also include a resume" under Exemption ( c) of the Public Records Law or FIP A. I understand a Public Records Division staff attorney contacted you and provided a copy of the appeal file. You indicated the Department would provide a supplemental response to Ms. Kowalczyk.

Misael Garcia SPRl 7/561 Page 5 May 9, 2017 Conclusion Accordingly, I will consider this administrative appeal closed with the proviso that the Department provide Ms. Kowalczyk with a supplemental response within ten business days. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Ms. Kowalczyk may appeal the substantive nature of the Department's response within ninety days. See 950 C.M.R. 32.08(1 ). Sincerely, Rebecca S. Murray Supervisor of Records cc: Lizbeth Kowalczyk