D Nathaniel Mulcahy v. Executive Office of Health and Human Services - Department of Public Health (SPR 20180790)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 15,2018 SPR181790 Helen Rush-Lloyd Executive Office of Health and Human Services Department of Public Health 250 Washington Street Boston, MA 02 108-461 9 Dear Ms. Rush-Lloyd: I have received the petition of Nathaniel D. Mulcahy appealing the response of the Department of Public Health (Department) to a request for public records. G. L. c. 66, 5 10A; see 950 C.M.R. 32.08(1). Specifically, on May 8,2018, Mr. Mulcahy requested the following records: 1. "A list of every address [an identified individual] has inspected over the past three years." 2. "A list of each remediation contractor or company used by each of the addresses that were inspected under the supervision of [an identified individual]." 3. "The name of the person or agency that was responsible for entering the cover sheets into the database . . ." 4. "The state's and your program's guidelines for redaction of documents." The Department provided a response on May 22,201 8 denying access to responsive records pursuant to Exemption (c) of the Public Records Law and indicating that it does not possess records responsive to Request 2. G. L. c. 4, 5 7(26)(c). Unsatisfied with the Department's response, Mr. Mulcahy petitioned this office and this appeal, SPR181790, was opened as a result. Petitions to the Supervisor of Records Mr. Mulcahy is reminded that when appealing to the Supervisor of Records, the requestor "shall provide to the Supervisor complete copies of all correspondence associated with the petition, including: a complete copy of the letter by which the request was made, including in the case of electronic communications all header information indicating time, date, subject, sender and recipient email addresses . . ." 950 C.M.R. 32.08(1)(g). One Ashburton Place, Room 17 19, Boston, Massachusetts 02 108 (6 17) 727-2832. Fax: (6 17) 727-59 14 sec.state.ma.us/pre pre@sec.state.ma.us

Helen Rush-Lloyd Page 2 June 15,2018 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, $ 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 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 May 22ndr esponse In its May 22,2018 response, the Department asserts that with respect to Request 1, "[tlo the extent a responsive record exists, [the] list of addresses . . . is exempt from disclosure under [Exemption (c)] because disclosure may constitute an unwarranted invasion of personal privacy as it could lead to identification of lead poisoned children." With respect to Request 2, the Department claims it "does not maintain a list of remediation contractors who performed work at specific addresses inspected under the supervision of [the identified individual]. Therefore, [the Department] does not have any responsive records." Further, with respect to Request 3, the Department indicates that it "is the agency responsible for entering private inspection coversheets into the database" and provides a link to its guidelines for redacting confidential information to Request 4. Exemption (c) The Department claims 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 an unwarranted invasion of personal privacy

Helen Rush-Lloyd Page 3 June 15,2018 Second clause of Exemption (c) -privacy Exemption (c) contains two distinct and independent clauses, each requiring its own analysis. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 432-34 (1983). Only the second clause of Exemption (c) is applicable to this determination. 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. The Department's response does not contain the specificity required in a denial of access to public records. Although the Department claims it withheld responsive records "because disclosure may constitute an unwarranted invasion of personal privacy as it could lead to identification of lead poisoned children," considering the PETA analysis, the Department has not demonstrated how the list contains intimate details of a highly personal nature or how disclosure would result in personal embarrassment to an individual of normal sensibilities. Neither has it addressed the availability of such information from other sources. Also, the Department did not provide 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 29 1-92. Also, according to Mr. Mulcahy, "every hazard report is listed online . . . with the inspector's name, license number, and the address of the home that was inspected and the date the home was inspected." As such, I find that the Department has not demonstrated how release of the list of addresses would lead to the identification of lead poisoned children when the information is available on the Department's website.

Helen Rush-Lloyd Page 4 June 15,2018 Further, with respect to Request 2, the Department claims that it "does not maintain a list of remediation contractors at specific addresses . . ." Based on the Department's response, it is unclear if the Department was once in possession of a list of remediation contractors or could provide such a list to Mr. Mulcahy. I understand a Public Records Division staff attorney contacted your office about this appeal. Conclusion Given that the Department did not meet its burden to explain how an exemption applies to responsive records, the requested records may not be withheld. Accordingly, the Department is ordered to review the requests, redact records where necessary and provide Mr. Mulcahy 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.T he Department may file a request for reconsideration of this determination within ten business days of the date of this determination letter. Sincerely, V Rebecca S. Murray Supervisor of Records cc: Nathaniel D. Mulcahy