Colman Herman v. Executive Office of Elder Affairs (SPR 20171515)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords November 3, 2017 SPR17/1515 Siobhan Coyle, Esq. Executive Office of Elder Affairs One Ashburton Place, Room 51 7 Boston, MA 02108 Dear Attorney Coyle: I have received the petition of Colman Herman appealing the response. of the Executive Office of Elder Affairs (EOEA) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on June 28,2017 Mr. Herman requested "to set up an appointment to visit the [EOEA] to view any complaints filed regarding assisted living facilities for the period July 1, 2015 to June 30, 2017." On July 25t\ the EOEA provided a response in which it withheld and redacted portions of the responsive records pursuant to Exemption ( c) of the Public Records Law. G. L. c. 4, § 7(26)(c). Unsatisfied with the EOEA's response, Mr. Herman petitioned this office and this appeal, SPRl 7 /1402, was opened as a result. 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, § 1 O(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, § lO(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

Siobhan Coyle, Esq. SPR17/1515 Page2 November 3, 2017 The EOEA's July 25th response In its July 25th response, the EOEA indicated that "certain portions of these records have been redacted and/or some records withheld from production due to 'the medical and privacy exemption,' G. L. c. 4, § 7(26)(c)." The EOEA asserted that " .... [ c Jomplaints submitted to the Assisted Living Residence Certification Unit often include protected information. To determine whether the disclosure of such information includes 'medical files or information' or other information that would 'constitute an unwarranted invasion of personal privacy,' EOEA reviewed each complaint and redacted medical diagnosis, dates of incidents and dates incidents were reported, pronouns, names of individuals, ages, and private information subject to [E]xemption ( c) of the Public Records Law." Exemption (c) The EOEA cites Exemption ( c) to justify the withholding of information related to medical diagnosis, dates of incidents, dates incidents were reported, pronouns, names of individuals, ages, and private information. Exemption (c) of the Public Records Law, also known as the privacy exemption, permits the withholding of: personnel and medical files or information; also any other materials or data relating to a specifically named individual, 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 separate analysis. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 432-33 (1983). First clause 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); 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. Chief Medical Examiner, 404 Mass. 132, 135 (1987). Based on the EOEA's July 25th response, I find the EOEA may permissibly withhold portions of the responsive record that contain medical information under the first clause of

Siobhan Coyle, Esq. SPR17/1515 Page 3 November 3, 2017 Exemption (c). Second clause 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. 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. 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. In a telephone conversation with the EOEA, this office was notified of an email correspondence between Mr. Herman and the EOEA dated August 17, 2017. In that email, the EOEA supplemented its July 25111 response and explained to Mr. Herman that, "[i]nformation that could be used to identify the data subject has been redacted, including indirect sources of data with which an individual familiar with the individual in question could identify the individual, including names, personal pronouns, and personal information associated with ALR residents, as well as dates and times associated with the circumstances described in the complaint narrative." The EOEA asserted that "ALR residents and/or their representatives have no expectation that information included in a personal complaint would be shared for any reason and have a limited capacity to take affirmative steps on an individual basis to protect their privacy." In a subsequent telephone conversation with the EOEA, the EOEA confirmed that because the narrative provided to Mr. Herman contain intimate details of a highly personal nature, disclosure of the withheld information would result in personal embarrassment to an individual of normal sensibilities. This is because according to the EOEA, the information

Siobhan Coyle, Esq. SPRl 7/1515 Page4 November 3, 2017 contained in the narrative incidents is very personal and the individuals involved did not expect that their personal complaints would be shared with the public. The EOEA also confirmed that the information is not available from other sources. Based on the EOEA's responses, I find the EOEA has met its burden to show how the release of the information related to the names, ages, pronouns, dates of incidents and dates incidents were reported, combined with the information already provided to Mr. Herman, would create a risk of indirectly identifying individuals in the reports if a person was familiar with the individual in question. See Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427,438 (1983) (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). Further, in light of the narrative of incidents provided to Mr. Herman, I find how these information constitute "intimate details of a highly personal nature" attributable to a. specific individual. Consequently, considering the factors under the PETA decision, I find the EOEA acted within its discretion in making such redactions to the responsive records under Exemption ( c) and I see no compelling public interest in favor of disclosure that would outweigh the privacy interests of these individuals. Conclusion Accordingly, whereas I find the EOEA has met its burden to withhold information related to medical diagnosis, dates of incidents, dates incidents were reported, pronouns, names, and ages of individuals from the records; I will consider this administrative appeal closed. Sincerely, ~~ Supervisor of Records cc: Colman Herman