Erin Smith v. Boston Public Health Commission (SPR 20171722)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords December 22, 2017 SPR17/1722 Timothy Harrington General Counsel Boston Public Health Commission 1010 Massachusetts A venue, 6th Floor Boston, MA 02118 Dear Mr. Harrington: I have received the petition of Erin Smith of Boston 25 News appealing the response of the Boston Public Health Commission (Commission) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on October 5, 2017 Ms. Smith requested the following categories of records: "• A list of the dates and times that Boston EMS contacted BAMA (Boston Ambulance Mutual Aid) for assistance from January 1, 2017 to present). • A list of the dates and times that Boston EMS dispatchers or other employees recorded zero availability for Boston EMS ambulances, including but not limited to ALS and BLS, from January 1, 2017 to present. • All complaints filed with Boston EMS from January 1, 201 7 to present. • All dispatch recordings by Boston EMS on December 12, 2016 between lp.m. and 3:30 p.m." In a response dated November 8, 2017, the Commission provided responsive records in redacted form and denied access to others pursuant to the Health Insurance Portability and Accountability Act of 1996 (HIPAA) as it operates through Exemption (a), the statutory exemption and Exemption (c) of the Public Records Law. G. L. c. 4, § 7(26)(a),(c). Unsatisfied with the Commission's response, Ms. Smith petitioned this office and this appeal, SPRl 7 /1722, was opened as a result. It appears Ms. Smith is appealing the Commission's response regarding the fourth request for "all dispatch recordings ... " 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 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

Timothy Harrington SPR17/1722 Page 2 December 22, 2017 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, § IO(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. The Commission's November sth response In its November gth response, the Commission confirmed that it possesses "911 dispatch recordings from December 12, 2016 between 1 :00 p.m. and 3:30 p.m., but the recordings contain protected health information ('PHI') including a description of patients' medical condition, dates of birth and home addresses. The recordings are confidential because they contain medical records protected by law." The Commission relied on both state and federal law to deny access to the requested records. Under state law, the Commission indicated that it withheld the records under Exemption (c) of the Public Records Law, because the requested documents "constitute 'medical files or information' and 'materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy."' Under federal law, the Commission indicated that the Health Insurance Portability and Accountability Act of 1996 (HIPA A), which prevents the disclosure of any protected health information (PHI) without a valid patient authorization form or court order, permits non-disclosure of the requested record. The Commission indicated that because PHI is "broadly defined as that which could potentially be used to identity a patient, the disclosure of nearly any portion of a health record document could inadvertently violate federal law." The Commission also indicates that "even a redaction of a health record to meet the de identification standard could still compromise patient confidentiality where any portion of the record could be used, in connection with other publicly available information, to identify the patient." The Commission explained that it "has reason to believe that, because of the particularly sensitive information and the amount of information about the incident(s) at this location made available on the internet, because this is sensitive information and there is information about the incident(s) on the Internet, disclosure of any portion would certainly violate federal law." Thus, the Commission indicates that it "will not release the records you have requested unless you can furnish a valid patient authorization form or a court order."

Timothy Harrington SPRl 7/1722 Page 3 December 22, 2017 Exemption (a) In your November 8th response, you state that the Commission denied access to responsive records, because they include Patient Health Information (PHI), which is exempt under HIPAA, as it operates through Exemption (a) of the Public Records Law. Exemption (a), known as the statutory exemption, permits the withholding of records that are: 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 of Lynn, 377 Mass. 15 1, 54 (1 979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either "shall not be a public record," "shall be kept confidential" or "shall not be subject to the disclosure provision of the Public Records Law." The second category under the exemption includes records deemed exempt under a statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. Exemption (c) The Commission indicated it withheld responsive records pursuant to Exemption (c ) of the Public Records Law because the records constitute "medical files or information." 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).

Timothy Harrington SPRl 7/1722 Page 4 December 22, 2017 First clause ofE xemption (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, 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 Company, 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). 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 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. The Commission does not provide sufficient detail on how HIP AA, as it operates through Exemption (a), and the first clause of Exemption (c) apply to the responsive record. I find the Commission has not met its burden in demonstrating how the responsive record in its entirety

Timothy Harrington SPRl 7/1722 Page 5 December 22, 2017 constitutes PHI, exempt under HIP AA, and "medical files or information" exempt under the first clause of Exemption (c). The statutory exemptions are narrowly construed and not blanket in nature; any non-exempt, segregable portion of a public record is subject to mandatory disclosure. See Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979); see also G. L, c. 66, § lO(a). I understand a Public Records Division staff attorney contacted your office about this appeal and you indicated the Commission would provide a supplemental response to Ms. Smith. It is my understanding that the Commission has a unique right of access for individuals to get these records unredacted if there is a valid patient authorization form or a court order. In an email to the Commission on November 14, 2017, Ms. Smith attached a copy of a patient authorization form signed by a representative of the individual whose medical information is the subject of this appeal. Therefore, based on the provision of the requested form, it is unclear why the Commission has failed to release the responsive record. Conclusion Accordingly, whereas the Commission has indicated that it will provide a supplemental response, I will now consider this administrative appeal closed with the proviso that the Commission provides said response 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: Erin Smith