Erin Smith v. Boston Public Health Commission (SPR 20180038)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division

Rebecca S. Murray Supervisor of Records

January 23, 2017 SPR18/038

Mimi Brown, Esq.

Boston Public Health Commission 1010 Massachusetts Avenue Boston, MA 02118

Dear Attorney Brown:

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, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on October 5, 2017 Ms. Smith requested the following categories of records:

“e 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, 2017 to present.

All dispatch recordings by Boston EMS on December 12, 2016 between Ip.m. and 3:30 p.m.”

Previous appeal

This request was the subject of a previous appeal. See SPR17/1722 Determination of the Supervisor of Records (December 22, 2017). I closed SPR17/1722 with the proviso that the | Commission provide Ms. Smith with a response to the request, provided in a manner consistent with the order, the Public Records Law, and its Regulations.

Following the determination, the Commission provided a response on January 10, 2018 in which it continues to deny access to records responsive to the fourth request pursuant to the Health Insurance Portability and Accountability Act of 1996 (HIPAA) as it operates through Exemption (a) and Exemption (c) of the Public Records Law. G. L. c. 4, § 7(26)(a), (c).

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

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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, § 10A(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, § 10(b)(iv); 950 C.M.LR. 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, § 10(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 January 10" response

In its January 10" response, the Commission indicates that “with regards to the fourth request, the Commission . . . has provided audio files of dispatch recordings to the individual listed on the authorization form submitted by you.” The Commission reiterates that “it is exempt from disclosing any other information pursuant to M.G.L.c. 4, § 7(26)(c) as well as M.G.L.c. 4, § 7(26)(a) on the grounds that the records are confidential under state and federal law and disclosure of any portion of the dispatch recordings would almost certainly violate Federal law.” The Commission indicates that “[HIPAA] prohibits the release of identifiable health information without a valid patient authorization form. As such, it will not release the remaining dispatch recordings requested because such recordings contain protected health information of other individuals of whom the Commission does not have valid patient authorization forms for.”

Exemption (a) In your January 10" response, the Commission indicated that it withheld responsive records, because they include Protected 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).

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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.

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). First clause of Exemption (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 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).

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Second clause of Exemption (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.

In camera inspection

In order to analyze the legal basis of the Commission’s position, it is the finding of this office that an in camera review of an unredacted copy of the responsive records would facilitate a determination as to the applicability of any exemption claims made by the Commission. See 950 C.M.R. 32.08(4). After I complete my review of the records, I will return the records to your custody and issue an opinion on the public or exempt nature of the record. See 950 C.M.R. 32.08(4); see also Bougas, 371 Mass. at 66 (explaining that “[o]n doubtful questions an in camera inspection may be appropriate’).

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, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Massachusetts Comm’n Against Discrimination, 384 Mass. 198, 206 (1981) (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

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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.LR. 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. I understand a Public Records Division staff attorney contacted your office about this appeal.

Order

Accordingly, the Commission is hereby ordered to provide this office with an unredacted copy of the responsive records without delay.

Alureo.

Ricco. S. Murray Supervisor of Records

cc: Erin Smith