S. Howey v. Boston Public Health Commission (SPR 20180463)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 19,201 8 SPR181463 Timothy J. Harrington, Esq. General Counsel Boston Public Health Commission 101 0 Massachusetts Avenue Boston, MA 02 11 8 Dear Attorney Harrington: I have received the petition of S. Howey appealing the response of the Boston Public Health Commission (Commission) to a request for public records. G. L. c. 66, 5 10A; see also 950 C.M.R. 32.08(1). Mr. Howey requested a copy of records pertaining to a certain address from January 9,2018 to the present, specifically: All computer aided dispatch (CAD) transcripts; calls for service reports; incident reports; bills; police reports; audio files for 91 1 calls; log book entries; documents and 91 1 documents. The Commission denied the request in its entirety pursuant to the first clause of Exemption (c) and the Health Insurance Portability and Accountability Act of 1996 (HIPAA). As a result, S. Howey petitioned the Supervisor of Records, and this appeal was opened. 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 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 5 11 (1995) (custodian has the burden of establishing the applicability of an exemption). One Ashburton Place, Room 1719 , Boston, Massachusetts 02108 (61 7) 727-2832. Fax: (6 17) 727-5914 sec.state.ma.us/pre pre@sec.state.ma.us

Timothy J. Harrington, Esq. Page 2 April 19, 20 18 The Contmission 's April 9'' response In its April 5thr esponse the Commission informed S. Howey that one call for service to Boston Emergency Medical Services (EMS) was made to 91 1 requesting an ambulance, which was subsequently cancelled. While the car was logged into CAD as an advised incident, no EMS ambulance was dispatched. It appears from the response that the Commission has a 91 1 audio call recording and report from CAD, however, the Commission is withholding these records because they contain medical information pursuant to Exemptions (a) and (c) of the Public Records Law. 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 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. Attorney Gen. v. Collector of Lvnn, 377 Mass. 15 1, 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. The Commission cites the Privacy Rule of the Health Insurance Portability and Accountability Act (HIPAA), 45 CFR Part 160.103 as a means for withholding the requested record. Your April response contends that the Commission is restricted from disclosing protected health information to anyone unless the Commission is provided with a valid patient authorization form or a court order. The Commission's response states, "[ildentifiable health information includes: demographic information that is created or received by a health care provider and that which relates to the individual's past, present, or future physical or mental health or condition, the provision of health care to the individual, or the past, present or future payment for the provision of health care to the individual." It is also the Commission's contention that even redaction of a health record to de-identify it could still compromise patient confidentiality where any portion of the record could be used in connection with other publicly available information.

Timothy J. Harrington, Esq. Page 3 April 19,2018 However, the Commission did not explain what requested records or categories of records, besides the 9 11 audio recording and CAD report, that the Commission is in possession of that are being withheld as patient medical records or information. Nor has the Commission supported its withholding of entire records, where redaction to protect an individual's medical information under HIPAA as it operates through Exemption (a). As a result, I find that the Department has not met its burden in claiming Exemption (a) to withhold the records in their entirety. Exemption (c) Exemption (c) applies to: 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, 5 7 (26)(c). 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 (1 983). The first clause creates a categorical exemption for personnel information that relates to an Id. 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 will be of a sufficiently personal nature to warrant exemption. Globe Newspaper Co., 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 (19 87). Given that the Commission has not demonstrated that the records, in their entirety, are medical records or information that may be withheld under the first clause of Exemption (c), I find that the Commission has not met its burden of specificity in claiming Exemption (c) of the Public Records Law and withholding the records in their entirety. 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., 391 Mass. 1, 9 (1984); Attorney Gen. v. Assistant Comm'r of Real Property Dep't, 3 80 Mass. 623,625 (19 80). 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)

Timothy J. Harrington, Esq. Page 4 April 19,201 8 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 Id. 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. Based on a review of the Commission's April 5thr esponse, it is unclear whether the Commission is withholding any or all of the records under the second clause of Exemption (c), as well as the first clause of Exemption (c). I find that the Commission has not met its burden of specificity in demonstrating that the public's interest in knowing whether public servants are carrying out their duties in a law-abiding and efficient matter does not outweigh any privacy interest of the subjects of the information. Burden of specificity; duty to segregate The Commission's response did not meet the requirements in providing a response, and in withholding responsive records. Under the Public Records Law a written response must "identify 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 G. L. c. 66, 5 lO(b)(iv). The Commission denied S. Howey's request in its entirety under Exemption (c) without providing sufficient support for withholding the responsive records. Under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, 5 10(b)(iv); see also Globe Newspaper Co, v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 51 1. The Commission did not meet its burden of demonstrating how the responsive records, in their entirety, are exempt Erom disclosure. 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). The Commission must produce any non- exempt, segregable portions of the public records. G. L, c. 66, 5 10(a). It is my understanding that a Public Records Division attorney contacted you regarding this appeal.

Timothy J. Harrington, Esq. Page 5 April 19,201 8 Order Given that the Commission did not provide a response identifying the records or categories of records in its possession that are being withheld, and did not provide the specific reasons for such withholding, as required by statute, the Commission did not meet its burden to withhold the requested records in their entirety. See G. L. c. 66, 5 lO(b)(iv). Consequently, the Commission is ordered to review the records, redact where necessary, and provide S. Howey with the responsive records in a manner consistent with this order, the Public Records Law and its Regulations within ten (1 0) 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: S. Howey Vanessa Manzi