David Armstrong v. Department of Public Health (SPR 20171367)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords October 11, 2017 SPR17/1367 Helen Rush-Lloyd Records Access Officer Massachusetts Department of Public Health 250 Washington Street Boston, MA 021 08 Dear Ms. Rush-Lloyd: I have received the petition of David Armstrong of STAT appealing the response of the Department of Public Health (Department) to a request for public records. G. L. c. 66, § 1 OA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Armstrong requested "a copy of any Root Cause Analysis conducted relative to" an identified incident. In a response dated September 25, 2017 the Department provided a twenty-seven page report with portions redacted under Exemptions (c) and (f) ofthe Public Records Law. G. L. c. 4, § 7(26)(c), (f). 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, § 1O (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

Helen Rush-Lloyd SPR17/1367 Page 2 October 11, 2017 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 yxempt 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 Co., 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. ChiefMed. Examiner, 404 Mass. 132, 135 (1987). Analysis under the second clause of Exemption (c) is subjective in nature and requires a balancing ofthe 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, 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.l3; 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

Helen Rush-Lloyd SPR17/1367 Page 3 October 11, 2017 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. Exemption (f) Exemption (f) permits the withholding of: investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest G. L. c. 4, §7 (26)(f). A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 371 Mass 59, 62 (1976). Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Attorney Gen., 52 Mass. App. Ct. 244, 248 (2001); Reinstein v. Police Comm'r of Boston, 378 Mass. 281,290 n.18 (1979). Exemption (f) invites a "case-by case consideration" of whether disclosure "would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest." See Reinstein, 378 Mass. at 289-90. Burden ofs pecificity In his appeal petition Mr. Armstrong notes that "[t]he Globe and STAT both accept that some information contained within the documents we are seeking will be redacted. This information includes: the name and identifying information about the victim, including age, date ofbirth, address, hometown, social security number, and names of family members. We understand that names of complainants, reporters, and constituents will be redacted." Instead, Mr. Armstrong's appeal pertains to "the decision to redact anything beyond these narrow limits." In its September 25th response the Department states "[p] atient names and medical information and constituents names, emails and addresses, have been redacted under M.G.L. c. 4, § 7, clause 26 (c) because disclosure may constitute an unwarranted invasion of personal privacy." You also indicate that "the names and addresses, of the complainants and reporters have been redacted under M.G.L. c. 4, § 7, clause 26 (f) because disclosure may compromise future investigative efforts." However, it is unclear how all the redactions within the report were properly made under Exemptions (c) and (f).

Helen Rush-Lloyd SPR17!1367 Page 4 October 11, 2017 I understand a Public Records Division staff attorney contacted you and I understand the Department will provide a supplemental response to Mr. Armstrong. Conclusion Accordingly, I will consider this appeal closed with the proviso that the Department provide Mr. Armstrong with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: David Armstrong