Nicole M. Avitabile, Esq. v. Department of Public Health (SPR 20180163)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor oJRecords February 20,2018 SPR181163 Helen Rush-Lloyd Department of Public Health 250 Washington Street Boston, MA 02108 Dear Ms. Rush-Lloyd: I have received the petition of Nicole Avitabile, Esq. appealing the response of the Department of Public Health (DepartmentIDPH) to a request for public records. G. L. c. 66, 5 10A; see also 950 C.M.R. 32.08(1). Specifically, on January 26,2018, Attorney Avitabile requested "[alny and all public records from 2016 to present that contain [an identified name] in his capacity as an employee of the Town of Lexington or its agents; and also his capacity as a licensed EMT Paramedic." Attorney Avitabile indicated that the requested records "should include, but not limited to anyla11 reports, records, investigatory materials, videos, photographs, complaints, employee records, agreements, contracts, agreements, license information, disciplinary information, and/or any documents created or store[d] on the Massachusetts Ambulance Trip Records Information System [(Trip Records System)] ." The Department provided a response on February 1,201 8, which included some responsive records and denied access to others pursuant to Exemptions (a), (c), and (f) of the Public Records law. G. L, c. 4, 5 7(26)(a), (c), (f). Unsatisfied with the Department's response, Attorney Avitabile petitioned this office and this appeal, SPR18/163, 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, 5 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, 5 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, 5 lO(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 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 SPRl81163 Page 2 February 20,20 18 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, $ lO(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 February lSrte sponse In its February 1,2018 response, the Department indicated that "[tlo the extent that your request seeks records relating to a pending complaint investigation conducted by DPH, Office of Emergency Medical Services, such records are exempt from disclosure under G. L. c. 4, $ 7, clause (26)(f) because the material could compromise the investigative efforts if disclosed." The Department also indicated that it withheld portions of the request seeking documents created or stored on the Trip Records System pursuant to Exemption (a) and (c) of the Public Records Law because, "it is medical or other material or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy." With respect to records relating to the identified individual, in his capacity as an employee of the Town of Lexington or its agents, the Department asserted that it redacted "tax ID and checking account data" pursuant to Exemptions (a) and (c) "because it is personal data protected by the Fair Information Practices Act ('FIPA' G. L. c. 66A), [and] disclosure of such information may constitute an unwarranted invasion of personal privacy." Exemption (a) The Department indicated it withheld responsive records under G. L. c. 66A, FIPA, 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 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 (19 79); 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

Helen Rush-Lloyd Page 3 February 20,20 18 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. Fair Information Practices Act (FIPA) FIPA imposes restrictions on the dissemination of "personal data." G. L. c. 66A, 5 2(c). "Personal data" is defined to include: any information concerning an individual which, because of name, identifying number, mark or description can be readily associated with a particular individual; provided, however, that such information is not contained in a public record, as defined in clause Twenty-sixth of section seven of chapter four and shall not include intelligence information, evaluative information or criminal offender record information as defined in section one hundred and sixty-seven of chapter six. G.L. c. 66A, 5 1. 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. Allen v. Holvoke 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, 5 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 it withheld responsive records pursuant to Exemption (c) of the Public Records Law. 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

Helen Rush-Lloyd Page 4 February 20,20 18 an unwarranted invasion of personal privacy 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., 3 88 Mass. 427,432-33 (19 83). 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 is sufficiently personal to warrant exemption. Globe Newspaper Co., 388 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 (19 87). 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: (I) 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 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 291. 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.

Helen Rush-Lloyd Page 5 February 20,20 18 fl Exemption The Department indicated it withheld responsive records pursuant to Exemption (f) of the Public Records Law. 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. Bougas 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. (0 Police Comm'r of Boston, 378 Mass. 28 1,290 n. 18 (1 979). Exemption 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. Burden of speczjicity; segregable portions Pursuant to the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. G. L. c. 66, $ lO(d)(iv) (written response must "identifl any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based . . ."); see also Globe Newspaper Co. v. Police Comrn'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 51 1. The Department did not identify any records, categories of records or portions of records that it intends to withhold from disclosure. To deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, $ lO(b)(iv); 950 CMR 32.06(3)(~)(4)H. ere, the Department withheld some responsive records without identifying the records. Therefore, the Department must identify the type of record(s) it has in its possession that it withheld. Also, the Department has not demonstrated that the withheld information is exempt under FIPA, as it operates through Exemption (a) of the Public Records Law because, it did not explain

Helen Rush-Lloyd Page 6 February 20,20 18 how the information is exempt from the definition of public records. As a result, the Department did not meet its obligation of explaining with specificity how the withheld information is exempt fi-om disclosure. Likewise, I find the Department has not met its burden of providing specific detail in its response to withhold responsive records under Exemption (c). Generally, Exemption (c) would allow a records custodian to withhold records that contain medical information. However, it is unclear how the records "created or stored on the Trip Records System" in their entirety contain medical information. It is additionally uncertain how the records cannot be redacted to prevent the disclosure of any medical information. See Brogan, 401 Mass. at 309 (concluding that "not every bit of information which might be found in a personnel or medical file is necessarily personal so as to fall within the exemption's protection"). Also, considering the PETA analysis, the Department has not demonstrated that the records contain intimate details of a highly personal nature and that disclosure would result in personal embarrassment to an individual of normal sensibilities. Neither has it addressed the availability of such information from other sources. In addition, the Department must provide additional information regarding the balancing test set-out in the second clause of Exemption (c) which examines whether the public interest in obtaining the requested information substantially outweighs the seriousness of any invasion of privacy. PETA, 477 Mass. at 291-92. Further, while the Department claims Exemption (f) allows it to withhold information because, "the material could compromise the investigative efforts if disclosed," it does not explain the subject of the investigation nor does it describe how the requested records are part of the investigation. Additionally, the Department did not provide supporting information concerning how disclosure could compromise investigative efforts nor how disclosure of any segregable portion "would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest" as required by Exemption (f). 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). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, 5 10(a). Consequently, I find that the Department has not met its burden to establish how portions of the responsive records may be withheld under Exemptions (a), (c), and (f). Additional responsive records The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, 5 lO(a)(ii). Although the Department provided some responsive records, Attorney Avitabile in her appeal claims that, "the amount of documents provided is unreasonable because it is unreasonable to believe that the public records proffered are the only responsive records in the possession, custody, and/or control of the [Department].. . ." As such, the Department must clarify if it possesses additional responsive records. I understand a Public Records Division staff attorney contacted your office about this appeal.

Helen Rush-Lloyd Page 7 February 20,20 18 Conclusion Accordingly, the Department is hereby ordered to provide Attorney Avitabile responsive records, provided in a manner consistent with this order, the Public Records Law, and its Regulations within tell 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. The Department may file a request for reconsideration of this determination within ten business days of the date of this determination letter. Sincerely, u Rebecca S. Murray Supervisor of Records cc: Nicole Avitabile, Esq.