Chris Inderson v. Department of Public Health - Bureau of Health Professions Licensure (SPR 20170819)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 30, 2017 SPR17/819 Charlena Christiansen Department of Public Health Bureau of Professions Licensure 239 Causeway Street, Suite 500 Boston, MA 02114 Dear Ms. Christiansen: I have received the petition of Chris Inderson appealing the response of the Department of Public Health Bureau of Health Professions Licensure (Department) to a request for public records. G. L. c. 66 § 1O A; see also 950 C.M.R. 32.08(1 ). Specifically, Mr. Inderson requested a copy of all nursing license applications and re-applications and documents in the file pertaining to an identified person. Department response On June 16th, the Department provided Mr. Inderson with a redacted copy oflicensing information from the Department's licensing database, but not the actual license applications submitted to the Department. Your response states that certain information was redacted pursuant to G. L. c. 66, § lOB as it operates through Exemption (a), and pursuant to Exemption (c) ofthe Public Records Law. In your response, you informed Mr. Inderson that after a comprehensive search, including contacting the State Records Center, the Department could not locate this licensee's application from 1980. Mr. Inderson appealed, stating, "the missing application file should be filled out as a new application so that one exists for this alleged nurse. My request was for nurse license applications and re-applications and all documents in the file." He also appealed the redaction of the college attended, her date of birth and other redactions. Mr. Inderson asks the Supervisor of Records (Supervisor) to obtain un-redacted copies. Requirements for filing a petition for an appeal Whereas Mr. Inderson did not provide the Records Access Officer (RAO) with a copy of his petition to the Supervisor, this office provided the RAO with a copy. In petitioning the 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

Charlena Christiansen SPR17/819 Page2 June 30, 2017 Supervisor, the requester must provide a copy of such petition to the RAO associated with such petition. 950 C.M.R. 32.08(1 )(h). No responsive record The Department informed Mr. Inderson that after a comprehensive search, including of archived records, the license application of the identified person from 1980 could not be located. It is unclear whether the Department also conducted a search for any other applications and re applications of the identified person; The Department should provide Mr. Inderson with a response to explain whether the Department has any further applications or renewal licensing applications for the identified person's licensure. 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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1O (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 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. Exemption (a) The Department withheld the licensee's home address and home telephone number pursuant to Exemption (a) of the Public Records Law. Exemption (a) allows the withholding of those records that are:

Charlena Christiansen SPR17/819 Page 3 June 30, 2017 specifically or by necessary implication exempted from disclosure by statute. G. L. c. 4, § 7 (26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public's right to inspect records under the Public Records Law is restricted. See Attorney Gen. v. Collector ofLynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This office cannot order disclosure of records if a statute mandates nondisclosure. Gen. Chemical Corp. v. Dept. ofEnvtl. Quality Eng' g, 19 Mass. App. Ct. 287 (Mass. App. Ct. 1985). The applicable statute that permits the Department to withhold the home address and home telephone number ofthe subject ofthe records is G. L. c. 66, § lOB. This statute provides in pertinent part: .... [T]he home address, telephone number, personal email address or place of employment or education of victims of adjudicated crimes, of victims of domestic violence and of persons providing or training in family planning services and the name and home address, telephone number, personal email address or place of employment or education of a family member of any ofthe foregoing shall not be public records in the custody of a government agency which maintains records identifying such persons as falling within such categories and shall not be disclosed. G. L. c. 66, § lOB. A review of the records provided to Mr. Inderson shows that the Department redacted the address of the person that was identified in the request; however, the Department did not explain whether the Department redacted the home address or the address of the place of employment of this identified person under G. L. c. 66, § lOB as it operates through Exemption (a). Therefore, I find that the Department did not meet its burden of specificity in responding to the request. Exemption (c) Your June 16th response states that portions ofthe documents have been redacted under Exemption (c) of the Public Records Law; however, the response does not explain what particular information was specifically withheld under Exemption (c), including what clause of the exemption applies and why. Exemption (c) applies to: 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).

Charlena Christiansen SPR17/819 Page4 June 30, 2017 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 of Exemption (c) creates a categorical exemption for personnel information that relates to an identifiable individual and is of a "personal nature." Id. at 434. The Supreme Judicial Court of Massachusetts has 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). For example, "employment applications, employee work evaluations, disciplinary documentation, and promotion, demotion, or termination information pertaining to a particular employee," may be withheld pursuant to the first clause of Exemption (c). ld. Second clause ofE xemption (c) 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 Cornrn'r ofReal Property Dep't, 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case by case basis. The second clause of Exemption (c) does not protect all data relating to specifically named individuals. Rather, there are factors to consider when assessing the weight of the privacy interest at stake: (1) whether disclosure would result in personal embarrassment to an individual of normal sensibilities; (2) whether the materials sought contain intimate details of a highly personal nature; and (3) whether the same information is available from other sources. See People for the Ethical Treatment of Animals (PETA) v. Dep't of Agric. Res., 477 Mass. 280, 292 (2017). 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 292 n. 13; 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 balancing test which provides that where the public interest in obtaining the requested information substantially outweighs the seriousness of any invasion of privacy, the private interest in preventing disclosure must yield. PETA, 477 Mass. at 291. The public has a recognized interest in knowing whether public servants are carrying out their duties in a law-abiding and efficient manner. Id. at 292. A review of the records provided to Mr. Inderson shows that the Department redacted the identified person's year of birth and the name of the school and dates of attendance. The

Charlena Christiansen SPR17/819 Page 5 June 30, 2017 Department has failed to explain how either clause of Exemption (c) applies to allow the Department to withhold this information. An RAO is required to not only claim an exemption to withhold information, but must also specifically explain how the exemption applies to the withheld record or portion of a record. I find that the Department did not meet its burden in demonstrating how these records may be redacted under the Public Records Law. It is my understanding that the Department contacted this office and will provide a supplemental response concerning the request and the redactions made to the records that were already provided to Mr. Inderson. Conclusion Accordingly, whereas the Department has indicated that it will provide a supplemental response to Mr. Inderson, I will consider this appeal closed with the proviso that the Department provide the response, in a manner consistent with this order, the Public Records Law and its Regulations within ten (1 0) business days. 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. Mr. Inderson may appeal the substantive nature of the response within ninety (90) calendar days. 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Chris Inderson (via email) Helen Rush-Lloyd, RAO