Todd Feathers v. Department of Mental Health (SPR 20180078)

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

Rebecca S. Murray Supervisor of Records

January 26, 2018 SPR18/078

Debra Leggett

Department of Mental Health 25 Staniford Street

Boston, MA 02114

Dear Ms. Leggett:

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 a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on January 2, 2018, Mr. Feathers requested “copies of all security camera footage covering the Comfort/Sensory Room. Day Room, and nurses station in the Cain 4 West Unit of Taunton State Hospital from 8 a.m. to 9:30a.m. on April 2, 2017.” The Department provided a response on January 17, 2017 in which it denied access to responsive records pursuant to the Fair Information and Practices Act (FIPA) and Health Insurance Portability and Accountability Act (HIPAA) as they operate through Exemption (a) and Exemption (c) of the Public Records Law. G. L. c. 4, § 7(26)(a), (c). Unsatisfied with the Department’s response, Mr. Feathers petitioned this office and this appeal, SPR18/078, 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, § 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.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.

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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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 Department’s January 17“ response

In its January 17" response, the Department indicated that “[t]o the extent that DMH possesses records responsive to your request, such records are withheld from production.” The Department indicated that, because the video includes images of patients in service at the Taunton State Hospital and contain medical information, the videos are exempt from disclosure - under G. L. c. 66A, § 2, FIPA, and HIPAA as they operate through Exemption (a) and Exemption (c) of the Public Records Law.

Exemption (a)

The Department indicated its intent to withhold responsive records pursuant to 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. ¢. 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.

Under its Exemption (a) claim, the Department indicated that FIPA and HIPAA require the Department to withhold the videos as they contain patient’s sensitive and confidential medical information. The Department indicated that “G. L. c. 123, sec. 36 specifically provides

Debra Leggett SPR18/078 Page 3 January 26, 2017

that patients’ medical records are private and not open to public inspection.” The Department also indicated that “[m]ore generally, medical information falls under the category of ‘protected health information’ (PHI), disclosure of which as public record is also prohibited under federal law. ... HIPAA prohibits the disclosure of PHI except as required or permitted by HIPAA, specifically subpart E of part 164 or by subpart C of part 160 of 45 CFR subchapter C. See 45 CFR 164.502.” As such the Department indicated that a release of the video which contains patients’ protected health information is not permitted under HIPAA.

Fair Information Practices Act (FIPA)

FIPA, which imposes restrictions on the dissemination of “personal data,” reads in pertinent part that the holder maintaining personal data shall:

not allow any other agency or individual not employed by the holder to have access to personal data unless such access is authorized by statute or regulations which are consistent with the purposes of this chapter or is approved by the data subject whose personal data are sought if the data subject is entitled to access under clause (i).

G.L. c. 66A, § 2(c).

In support of its position to withhold records, the Department indicated that FIPA provides that the Department “may not allow access to any information concerning an individual which, because of name, identifying number, mark or description can be readily associated with a particular individual. This includes information that identifies private individuals, such as photographs or videos of DMH clients.”

The Department is reminded that FIPA and the Public Records Law are to be construed to work together consistent with the legislative purpose. 32 Op. Atty Gen. Mass. 157, 160 (May 18, 1977). FIPA cannot provide a basis for withholding the requested information unless the records fall within a statutory exemption to the definition of public records. See Allen v. Holyoke Hosp., 398 Mass. 372, 379 (1986) (stating that “determining whether the record sought is protected by FIPA depends on whether the record is a public record pursuant to G. L. c. 4, § 7 Twenty-sixth, and subject to the disclosure provisions of G. L. c. 66A”), FIPA, by itself, cannot justify withholding information. A custodian must first specifically explain how the withheld information is exempt from the Public Records Law. Once a record is found to be exempt from the definition of public records, FIPA may also operate to restrict disclosure.

Exemption (c)

The Department indicated its intent to withhold responsive records pursuant to Exemption (c) of the Public Records Law.

Exemption (c) permits the withholding of:

Debra Leggett SPR18/078 Page 4 January 26, 2017

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) - Medical

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, relevant to this determination, 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. Id. 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).

Under its Exemption (c) claim, the Department indicated that Exemption (c) “provides that personnel and medical files or information are not public records.” Citing to Globe

Newspaper Co., 404 Mass. at 135, the Department asserts that “[t]he Legislature has made such medical files or information absolutely exempt.”

The Department’s January 26" supplemental response

In its January 26" supplemental response, the Department reiterates that “video tapes of DMH clients within Taunton State Hospital are not public records for the reasons set forth in DMH’s response dated January 17, 2018.” The Department indicates that after completing a comprehensive search, the Department “has identified no records responsive to your PRR in its possession, custody, or control.

No duty to create. records

Under the Public Records Law, a custodian of records is not required to create a list of records or any record in response to a public records request. In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, §10(a); 32 Op. Atty Gen. 157, 165 (May 18, 1977). The duty to comply with requests for information extends only to those records that exist and are in the custody of the custodian of records at the time of the request. See G. L. c. 4, § 7(26).

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Conclusion

Accordingly, whereas the Department has indicated it has no records responsive to your -request for “security camera footage covering the State Hest Room, Day Room, and nurses station in the Cain 4 West Unit of Taunton State Hospital ... ,” I consider this administrative appeal closed.

If Mr. Feathers is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G.

L. c. 66, § 10(b) (pursuing administrative appeal does not limit availability of applicable judicial remedies).

Sincerely,

Rebecca S. Mu: filotcco. Numa,

rray Supervisor of Records

cc: Todd Feathers