S. Howey v. Boston Public Health Commission (SPR 20170719)

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

Rebecca S. Murray Supervisor of Records

June 6, 2017 SPR17/719

Mimi Brown, Esq.

Assistant General Counsel

Boston Public Health Commission 1010 Massachusetts Avenue Boston, MA 02118

Dear Attorney Brown:

I have received the petition of S. Howey appealing the response of the Boston Public Health Commission (Commission) to a request for public records. G. L. c. 66 § 10A; see also 950 C.M.R. 32.08(1). Specifically, S. Howey requested “all Computer Aided Dispatch Transcripts (CADs), Calls for Service Reports, all incident reports, all bills, all police reports, all audio files for 911 calls, all log book entries, all documents and all 911 documents” pertaining to _a specific address from January 1, 2014 to May 14, 2015. In a response dated May 3, 2017 the Commission withheld responsive records pursuant to the Health Insurance Portability and Accountability Act of 1996 (HIPAA) as it operates through Exemption (a), the statutory exemption and Exemption (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, § 10A(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, § 10(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

Mimi Brown, Esq. SPR17/719 Page 2 June 6, 2017

If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). 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. 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.

Exemption (c)

You claim the responsive records constitute “medical files or information” that are exempt pursuant to Exemption (c) of the Public Records Law. G. L. c. 4, § 7 (26)(c). Exemption (c) of the Public Records Law 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).

This exemption 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, 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).

In the Commission’s May 314 response you indicate Boston EMS created “patient care reports” or “PCRs” and possesses tapes of responsive 911 calls. You explain that “[i]n the PCR, EMS includes the patient’s name, date of birth, as well as a very specific description of the patient’s medical condition and treatment rendered by EMS.” You further explain “[I]ike the PCRs, the calls include a description of the patient’s medical condition and date of birth.” You claim “[t]he reports and recordings are confidential because they contain medical records protected by law.”

Mimi Brown, Esq. SPR17/719 Page 3 June 6, 2017

The Commission further asserts “even a redaction of a health record to meet the de- identification standard could still compromise patient confidentiality where any portion of the record could be used, in connection with other publicly available information, to identify the patient.” You explain “[t]he Commission has reason to believe that, because of the particularly sensitive information and the amount of information about the incident(s) at this location made available on the Internet...” there is clearly a risk that the patients involved could be identified by disclosure of any portion of the responsive records.

I find that the Commission has met its burden to withhold responsive records under the first clause of Exemption (c). See Globe Newspaper, 388 Mass. at 438 (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). As such, I decline to opine upon the applicability of the specified provision of HIPAA as it operates under Exemption (a) of the Public Records Law, or the other issues presented in your letter.

Sincerely,

Rebecca S. Murray Supervisor of Records

cc: S. Howey