Deirdre Bannon v. Department of Developmental Services (SPR 20171481)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 30, 2017 SPR17/1481 James Bergeron, Esq. Assistant General Counsel Department of Developmental Services 500 Harrison A venue Boston, MA 02118 Dear Attorney Bergeron: I have received the petition of Deirdre Bannon of the Schuster Institute for Investigative Journalism (Institute) appealing the response ofthe Department of Developmental Services (Department or DDS) to a request for public records. G. L. c. 66, § 1 OA; see also 950 C.M.R. 32.08(1). Specifically, on December 2, 2016 Noah Coolidge ofthe Institute requested copies of certain Human Rights Committee Meeting Minutes for the Judge Rotenberg Educational Center (JRC) from 2005 to the present. In a response dated January 9, 2017, you indicate that on December 3 0, 2016 Mr. Coolidge clarified the scope of the request to seek "paper records of the DDS Human Rights Committee [for all] meeting minutes forwarded to DDS from the JRC for the years 2008 to present." Previous appeal This request was the subject of a previous appeal. See SPR17 /530 Determination ofthe Supervisor of Records (May 3, 2017). I closed SPR17/ 530 with the proviso that the Department provide Ms. Bannon with a response to the request, provided in a manner consistent with the order, the Public Records Law and its Regulations. The Department provided a response dated May 24, 2017 in which redacted certain information under Exemptions (a) and (c) of the Public Records Law. G. L. c. 4 § 7(26)(a), (c); G. L. c. 66A. Ms. Bannon appealed this response and SPR17/1481 was opened as a result. The Public Records Law I note that the request for the responsive records was made prior to the new provisions of the Public Records Law (Law) that went into effect on January 1, 2017. Therefore, the prior Law's provisions and regulations apply to this request and appeal. 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

James Bergeron, Esq. SPR17/1481 Page 2 October 30, 2017 The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10(c) (2016 ed.); 950 C.M.R. 32.08(4) (20 16 ed.). "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(c) (2016 ed.); 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. Current appeal In Ms. Bannon's appeal petition she objects to the withholding ofthe following information from the responsive records provided: "[t]he names of the JRC staff members who attended JRC's Human Rights Committee ("HRC") meetings, which were redacted by DDS" and "[t]he initials of JRC clients whose behavior treatment plans were discussed during the HRC meetings, which were redacted by DDS." In its May 24th response the Department asserts that its regulations "require the HRCs to keep minutes of their meetings and to file copies ofthe minutes with DDS; however, the HRC meetings - where the confidential medical/behavioral treatment plans are presented and reviewed -are not public meetings within the meaning of the Massachusetts Open Meetings Law (G.L. c. 30A, §§ 18-25)." Issues that invoke the Open Meeting Law fall within the purview of the Attorney General (AGO) and not this Office. It is recommended that you contact the AGO should you seek a determination on this issue. However, whereas the applicability of the Open Meeting Law was not raised in the appeal, I will analyze this matter under the Public Records Law. Provision of client initials 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

James Bergeron, Esq. SPR17/1481 Page 3 October 30, 2017 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. Id. 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). Further, the Supreme Judicial Court has held that "the inquiry as to what constitutes identifying information regarding an individual must be considered not only from the viewpoint of the public, but also from the vantage of those who are familiar with the individual and his career." Globe Newspaper Co., 388 Mass. at 438. 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 ofReal 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. I d. 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, 4 77 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. DDS asserts that providing client initials "would present a' grave risk' of indirectly identifying specific DDS clients and their medical information as described above." You explain that the responsive records "are limited to a specific DDS provider agency; the HRC meeting minutes may contain medical, behavioral, and personal information relating to specific DDS clients served by this provider who live and reside in a limited geographic area."

James Bergeron, Esq. SPR17/1481 Page 4 October 30, 2017 I find the Department has met its burden to withhold client initials under Exemption (c) due to the risk of indirectly identifying individuals and their associated medical information. Redaction ofs taff names With respect to the redaction of staff names, the Department asserts it redacted "the names of clinical staff from JRC identified in the HRC meeting minutes because the disclosure of such information presents a grave risk of disclosing the identities of specific DDS clients and their medical information as well as a potential disclosure of the 'personal data' of these non-public employees as prohibited by G.L. c. 66A." The Department claims there is a risk of indirect identification because "[t]he identities of private provider staff contained in the HRC meeting minutes are included only in the context of these individuals presenting such medical or behavioral information regarding specific clients that they treat to the members of the HRC for review or approval of the individual's behavior treatment plan." You further assert that "to disclose the identities of the staff/clinicians specifically assigned to these individuals may contribute to the 'grave risk' that they may be indirectly identified and their medical information publicly disclosed." However, the Department has not met its burden to withhold JRC staff names because it is unclear how disclosure would create a grave risk of identifying the patients. In particular, it is not clear how disclosing names within the "Staff present" portion ofthe responsive minutes could identify a patient. The Department also cites the Fair Information Practices Act (FIP A) in support of its position. FIP A 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). FIPA 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 FIPA 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"). FIPA, 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. Whereas it is unclear whether this information is exempt under the Public Records Law, the Department has not met its burden to redact JRC staff names under FIP A. I understand a Public Records Division staff attorney contacted you about this appeal Conclusion Accordingly, the Department is ordered to provide Ms. Bannon with a response to the

James Bergeron, Esq. SPR17/1481 Page 5 October 30, 2017 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 p_r~_?_ec.state.ma.us. Sincerely, ~urr~ Supervisor of Records cc: Deirdre Bannon