David Armstrong v. Department of Public Health (SPR 20171545)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S Murray Supervisor of Records November 14 ,20 17 SPRl711545 Helen Rush-Lloyd Records Access Officer Massachusetts Department of Public Health 250 Washington Street Boston, MA 02108 Dear Ms. Rush-Lloyd: I have received the petition of David Armstrong of STAT appealing the response of the see Department of Public Health (Department) to a request for public records. G. L. c. 66, $ 10A; 950 C.M.R. 32.08(1). Specifically, Mr. Armstrong requested "a copy of any Root Cause Analysis conducted relative to" an identified incident. The Department provided a twenty-seven page report with portions redacted under Exemptions (c) and (f) of the Public Records Law. G. L. c. 4, § 7(26)(c), (f). Previous appeal This request was the subject of a previous appeal. See SPR17/1367 Determination of the Supervisor of Records (October 1l ,201 7). I closed SPR1711367 with the proviso that the Department provide Mr. Armstrong with a response to the request, provided in a manner consistent with the order, the Public Records Law and its Regulations. The Department responded in a letter dated October 25,2017 in which it provides additional information pertaining to the applicability of Exemptions (a), (c), and (f) to the redacted information. Mr. Armstrong appealed and SPR1711545 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, 1O A(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). 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 Page 2 November 14,201 7 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, 5 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 51 1 (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 his appeal petition Mr. Armstrong notes "[tlhe 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 of birth, address, hometown, social security number, and names of family members. We understand that the names of complainants, reporters, and constituents will be redacted." However, his appeal pertains to the redaction of "anything beyond these narrow limits." Mr. Armstrong also asserts that similar responsive information is available elsewhere in documents such as a death certificate as well as an associated police report. Exemption (a) The Department cites 42 C.F.R. Part 2, G. L. c. 66A, and 105 C.M.R. 164.084 as they operate through Exemption (a) in support of the redactions. You indicate that "[albsent consent or strictly construed exceptions, the Department is legally prohibited from disclosing any patient identifying information." You explain that under 42 C.F.R. 5 2.1 1, "Patient Identifying Information" is defined as the ... name, address, social security number, fingerprints, " photograph, or similar information by which the identity of a patient .. . can be determined with reasonable accuracy either directly or by reference to other information." See also 42 U.S.C.S. 5 290dd-2. The Department claims that the nature of the request, combined with "prevalent and highly publicized reports of the facility which are in the public domain" make identifying the individual "exceedingly simple." You note that the Department "redacted not only the patient identifying information and treatment-specific details such as the level of care to which the patient was admitted, but also redacted details about the specific events and circumstances surrounding the incident which would allow someone to cross reference such information with other publicly available information and identify the patient with reasonable accuracy." 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

Helen Rush-Lloyd Page 3 November 14,201 7 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 Id. an identifiable individual and is of a "personal nature." 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 Med. Examiner, 404 Mass. 132, 135 (1987). 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); Attornev 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. 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 a. disputes and reputation. 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 29 1. The public has a recognized interest in knowing whether public servants are carrying out their duties Id. in a law-abiding and efficient manner. at 292. With respect to Exemption (c), the Department claims "[tlhe medical and personal information, including details and events surrounding the incident, which is exempt from disclosure pursuant to exemption (a) is also exempt pursuant to exemption (c), as it is medical or other information the disclosure of which would constitute an unwarranted invasion of personal privacy."

Helen Rush-Lloyd Page 4 November 14,201 7 fl Exemption 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 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. Boug-as 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. 28 1,290 n. 18 (19 79). 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. With respect to Exemption (f), the Department claims "[tlhere is a strong public policy interest in ensuring that individuals at these facilities are forthright in reporting issues and cooperating in any potential future investigation. The names of certain individuals and some of the circumstances surrounding this incident, if disclosed, would have a chilling effect on future investigations." However, it is unclear whether these redactions pertain to voluntary witnesses, or how disclosure "would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest." Identification of individual Although the Department provides examples of the type of redacted information, the nature of each redaction is unclear. Flatley, 419 Mass. at 51 1 (custodian has the burden of establishing the applicability of an exemption). Further, despite the Department's assertion that the redactions are proper due to the risk of indirect identification, it is unclear what information is already publically available and which groups of people could use this information to potentially identify the individual at issue. I understand a Public Records Division staff attorney contacted you about this appeal.

Helen Rush-Lloyd Page 5 November 14,201 7 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. In camera review In the alternative, in order to facilitate a determination as to the applicability of exemption claims made by the Department, the Department may provide this office an unredacted copy of the responsive records for in camera inspection without delay. See 950 C.M.R. 32.08(4). After I complete my review of the documents, I will return the records to your custody and issue an opinion on the public or exempt nature of the record. The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G.L. c. 66, 5 1. This office interprets the in camera inspection process to be analogous to that utilized by the See judicial system. Rock v. Massachusetts Comm'n Against Discrimination, 384 Mass. 198, 206 (1 98 1) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. The Department may provide this office with an explanation of its position regarding the applicability of an exemption-to the responsive records. Please be advised that, unlike the materials provided for in camera review, any such additional correspondence would be placed in the file for this appeal and would be subject to public disclosure as a public record.

Helen Rush-Lloyd Page 6 November 14,201 7 Sincerely, Rebecca S. Murray V Supervisor of Records cc: David Armstrong