Todd Feathers v. Department of Mental Health (SPR 20171726)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords January 2, 2018 SPR17/1726 Misael Garcia Paralegal Department of Mental Health 25 Staniford Street Boston, MA 02114 Dear Mr. Garcia: I have received the petition of Todd Feathers of The Lowell Sun appealing the response of the Department of Mental Health (Department or DMH) to his request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on September 19, 2017 Mr. Feathers requested copies of Department case files pertaining to twenty identified complaints. Mr. Feathers specified each complaint by log number. The Department initially assessed a fee of $542.00 for the production ofrecords. Mr. Feathers paid this fee and on November 16, 2017, the Department provided certain responsive records with portions redacted under Exemptions (a) and (c) of the Public Records Law. G. L. c. 4 § 7(26)(a), (c); G.L. c. 123 § 36; G. L. c. 19C § 3, and the Health Insurance Portability and Accountability Act (HIPP A). The Department also provided Mr. Feathers an additional fee estimate of $450.00 to produce the remainder of his request. 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, § 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 · 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

Misael Garcia SPRl 7/1726 Page2 January 2, 2018 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, § IO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Fee estimates An agency may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d ). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.05) per page may be assessed for a black and white single or double-sided photocopy of a public record. G. L. C. 66, § 10(d )(i). Agencies may not assess a fee for the first four hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested. G. L. c. 66, § 10(d )(ii). Where appropriate, agencies may include as part of the fee an hourly rate equal to or less than the hourly rate attributed to the lowest paid employee who has the necessary skill required to search for, compile, segregate, redact or reproduce a record requested, but the fee shall not be more than $25 per hour. Id. A fee shall not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor of Records under a petition under G. L. c. 66, § lO(d)(iv). See G. L. c. 66, § lO(d)(ii); 950 C.M.R. 32.06(4). In the Department's November 16th response you indicate that although certain records were provided, "DMH will require additional fees to complete processing your request as outlined below." The additional fees total $450.00 and are comprised of eighteen hours to "[r]eview records for responsiveness and public records exemptions or other protections against disclosure; assemble records for production" at an hourly rate of $25.00 an hour. Under G. L. c. 66, § 1 O(b )(viii), a records custodian must "include an itemized, good faith estimate of any fees that may be charged to produce the records" in its response provided to the requester within ten business days. Whereas the Department's additional fee estimate of $450.00 was provided on November 16t\ it was not provided within ten business days in a manner consistent with G. L. c. 66, § 10(b)(viii). See also G. L. c. 66, § lO(d)-(e). Further, the Department has not filed a petition under G. L. c. 66, § 10(d)(iv) or established how segregation or redaction is required by law. See G. L. c. 66, § lO(d)(ii); 950 C.M.R. 32.06(4). Therefore, the Department may not assess additional fees for the production of the remaining records. Exemptions In its November 16th response the Department asserts it is "required to redact information from records that would directly or in combination with other available information identify

Misael Garcia SPR17/1726 Page 3 January 2, 2018 individuals served by mental health facilities and/or would constitute an unwarranted invasion of personal privacy." You alsoindicate that "some of the information detailed in the records, parts of patients' medical records, employee personnel records, and other personal information, such as, names and employee performance analysis are exempt from disclosure under G.L. c. 66 under two specific exemptions: G.L. c. 4, § 7(26) (a) and (c)." In his appeal petition, Mr. Feather notes that his request "seeks case files by public log numbers, not by the name of the patient involved." Mr. Feathers indicates he does not know the names of any of the patients mentioned in the case files and agrees that the Department may redact their identities. However, Mr. Feathers contends "the narrative substance of the case files - -victim statements about abuse, witness observations, investigator conclusions - is well within the scope of the public records law." Mr. Feathers asks this office to "order DMH to un-redact all portions of the case files except for the names and addresses of patients associated with identified medical conditions." Exemption (a) 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. 151, 54 (1979); 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 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. The Department asserts that "G.L. c. 4, § 7(26) (a) provides that records are exempt from disclosure under G.L. c. 66 if specifically or by necessary implication they are exempted from disclosure by statute. G.L. c. 123, sec. 36 specifically provides that patients' medical records are private and not open to public inspection." You also note that "[m]ore generally, medical records

Misael Garcia SPR17/1726 Page 4 January 2, 2018 fall under the category of 'protected health information' (PHI), the disclosure of which is prohibited under federal law. The Health Insurance Portability and Accountability Act (HIP AA) prohibits disclosure of PHI except as required or permitted by HIP AA, specifically subpart E of part 164 or subpart C of part 160 of 45 CFR subchapter C. See 45 CFR 164.502. A release pursuant to a public records request is not a permitted disclosure under HIPAA." Although the Department cites G.L. c. 123 § 36, G. L. c. 19C § 3, and HIPAA, it has not met its burden to justify each redaction within the responsive records provided. In particular, it is unclear which responsive records pertain to "the admission, treatment and periodic review of all persons admitted to facilities under its supervision" as contemplated in G.L. c. 123 § 36 or how all the redacted information is "protected health information" under HIPA A. 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). First clause 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 information that relates to an identifiable individual and is of a "personal nature." Id. at 434. 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. 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). In addition, Massachusetts courts have found that "core categories of personnel information that are 'useful in making employment decisions regarding an employee"' may be withheld from disclosure. Worcester Telegram & Gazette Corp., 58 Mass. App. Ct. 1, 5 (2003). For example, "employment applications, employee work evaluations, disciplinary documentation, and promotion, demotion, or termination information pertaining to a particular . employee," may be withheld pursuant to the first clause of Exemption (c). Wakefield Teachers Ass'n v. School Comm., 431 Mass. 792, 798 (2000).

Misael Garcia SPRl 7/1726 Page 5 January 2, 2018 Nevertheless, there is a strong public interest in monitoring public expenditures and public employees have a diminished expectation of privacy with respect to public employment matters. See George W. Prescott Publishing Co. v. Register of Probate for Norfolk County, 395 Mass. 274,278 (1985); Globe Newspaper Co., 388 Mass. at 436 n.15. Further, the public has an interest in knowing whether public employees are "carrying out their duties in an efficient and law-abiding manner." Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 158 (1979). As a result, certain information that is considered personal in the ordinary sense of the word may be considered part of a public record if relating to an individual's official responsibilities. See Brogan v. School Comm. of Westport, 401 Mass. 306,309 (1987). 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., 39} 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, 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. In its November 16th response, the Department asserts "[o ]n balance, DMH finds that affected private employees should be afforded greater protection than public employees who have a diminished expectation of privacy regarding their public employment. In some of the investigation records at issue, investigations are performed in DMH's role as a licensing agency. In this role, DMH is not monitoring public expenditures or the activities of public employees."

Misael Garcia SPRl 7/1726 Page 6 January 2, 2018 The Department also notes that "release of specific information that creates a grave risk of directly or indirectly identifying a private citizen who volunteers as a witness if released is exempt from disclosure under G.L. c. 4, sec 7(26)(c)." With respect to the pertinent balancing test, the Department indicates "[t]here is no strong public right to know the identities of the private employees involved in these investigations. In balancing the public's right to know against the relevant privacy interests at stake, it is clear that disclosing personal identifying information regarding the private employees constitutes an unwarranted invasion of personal privacy and is thus exempt from disclosure under G.L. c. 66." The Department has not met its burden to justify all the redactions within the responsive records. In particular, it is unclear how disclosing private citizens' identities would result in personal embarrassment to an individual of normal sensibilities or whether the materials sought contain intimate details of a highly personal nature. Further, the Department has not established that each redaction is necessary to protect the identities of patients associated with identified medical conditions. See Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature); Flatley, 419 Mass. 511 ( custodian has the. burden of establishing the applicability of an exemption). Any non exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § lO(a). I understand that a Public Records Division staff attorney contacted you about this matter. Conclusion Accordingly, the Department is ordered to provide Mr. Feathers with responsive records 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. A request for reconsideration of this determination may be filed within 10 business days of the date of this determination letter. Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Todd Feathers