S. Howey v. Boston Public Health Commission (SPR 20180792)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords June 14, 2018 SPRlS/792 Vanessa Manzi Office of the General Counsel Boston Public Health Commission 1010 Massachusetts A venue Boston, MA 02118 Dear Ms. Manzi: 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, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on April 1, 2018, S. Howey requested a copy of"all Computer Aided Dispatch Transcripts (CADs), Calls for service Report(s), all incident report(s), all bill(s), all police reports, all audio files for 911 calls, all log book entries, all documents and all 911 documents pertaining to [a certain address in] Boston from January 9, 2018 to the present." This appeal pertains to the 911 audio file only. Previous appeal This request was the subject of a previous appeal. See SPRI 8/627 Determination of the Supervisor of Records (May 18, 2018). In my May 18th determination, finding that the Commission had not met its burden to withhold the 911 audio file in its entirety under Exemptions ( a) and ( c) of the Public Records Law, I ordered the Commission to review the records, redact where necessary, and provide S. Howey with responsive records in a manner consistent with the order, the Public Records Law, and its Regulations. Following the determination, the Commission provided a response on June 1, 2018 in which it continues to reiterate that the 911 audio file is exempt from disclosure pursuant to Exemptions (a) and (c) of the Public Records Law. G. L. c. 4, § 7(26)(a), (c). Unsatisfied with the Commission's response, S. Howey petitioned this office and this appeal, SPR18/792, was opened as a result. 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

Vanessa Manzi SPR18/792 Page 2 June 14, 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, § lOA(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, § 1O (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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1O (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 June 1st response In its June 1, 2018 response, the Commission indicates that the 911 audio file "includes a description of the patient's medical condition and date of birth" and asserts that "[t]he reports and the recordings are confidential because they contain medical records protected by law." Therefore, the Commission contends the 911 audio file is exempt from disclosure under Exemptions (a) and (c) of the Public records Law. Exemption (a) The Commission claims that it denied access to the 911 audio file pursuant to the Health Insurance Portability and Accountability Act of 1996 (HIP AA), 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). 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

Vanessa Manzi SPR18/792 Page 3 June 14, 2018 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 Commission posits that because it is a covered entity under HIP AA, it is prohibited "from disclosing Protected Health Information (PHI) unless a valid exception applies, such as signed patient authorization form or court order." The Commission indicates that HIP AA "expressly limits the use and disclosure of records containing PHI to third parties without a valid exception [a nd] does not give covered entities discretion in releasing records containing PHI; it strictly prohibits this action." The Commission notes that even though the Supervisor of Records cites the de identification standard in its May 18th determination, the standard under HIP AA requires "an expert determination method (See 45 CFR 164.514(b)(l)) or the safe Harbor method (See 45 CFR 164.514(b)(2))." The Commission asserts that it "does not have an expert able to make a determination about whether or not redaction of the patient's individually identifiable information would render the records de-identified under the statute. Under the Safe Harbor method, a multitude of identifiers must be eliminated, including 'all geographic subdivisions smaller than a state, including street address, city, county, precinct, ZIP Code, and their equivalent geocodes, except for the initial three digits of the ZIPD [sic] code ... ' (See 45 CFR 164.514(b)(2)(i)(B))." The Commission contends that "[t]his is an impossible task because the location of the incident is already known by [S. Howey]. ... As such, the Commission cannot meet the de-identification standard under the Safe Harbor method." The Commission notes that because there are no other methods to de-identify data, it believes it has met its burden under HIP AA to withhold the 911 audio file in its entirety. Exemption (c) The Commission indicates it also withheld the 911 audio file pursuant to Exemption (c ) of the Public Records Law, because it contains "medical files or information." 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

Vanessa Manzi SPR18/792 Page4 June 14, 2018 an unwarranted invasion of personal privacy G. L. c. 4, § 7 (26)(c). First clause ofE xemption (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 is sufficiently personal 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). Under Exemption (c), citing the Globe Newspaper Co. decision, which held that personnel and medical files or information are absolutely exempt from disclosure, the Commission asserts that "the 911 audio file is absolutely exempt from disclosure ... because it is medical files of a personal nature and relate to a particular individual." As such, the Commission notes that it respectfully disagrees with the Supervisor's May 18th determination. Segregable portions With respect to whether the 911 audio file could be redacted, the Commission indicates that even if it were to redact PHI from the 911 audio file, it is still prohibited from releasing the record under HIPAA. The Commission explains that "[b]ecause PHI is broadly defined as that which could potentially be used to identify a patient, the disclosure of nearly any responsive portion of the 911 audio file could inadvertently violate Federal law. In effect, even a redaction of the 911 audio file could still compromise patient confidentiality where any portion of the record could be used, in connection with other publicly available information, to identify the patient." The Commission posits that even if it were to redact an individual's name, medical condition, and the street number of their location, there would still be enough pertinent information, such as location of the call, date and time the call was made, to identify the individual. In the Commission's June 1st response, it explains that the 911 audio file includes a description of the patient's medical condition and date of birth." The Commission claims "[t]he reports and recordings are confidential because they contain medical records protected by law," and are therefore exempt from disclosure. The Commission further asserts that "even a redaction of the 911 audio file to meet the de-identification standard could still compromise patient confidentiality where any portion of the

Vanessa Manzi SPR18/792 Page 5 June 14, 2018 record could be used, in connection with other publicly available information, to identify the patient." The Commission explains that even if an individual's name, street number of their location, and medical condition were redacted, information such as location of call, date and time the call was made, could be used to identify the individual. The Commission further explains that it "has reason to believe that, because of the particularly sensitive information and the amount of information about the incident (in the redacted 911 audio file and otherwise available on the Internet, through various media outlets, and elsewhere) ..." there is clearly a risk that the patients involved could be identified by disclosure of any portion of the 911 audio file. Based on the foregoing, I find that the Commission has met its burden to withhold the 911 audio file under the first clause of Exemption (c). See Globe Newspaper Co., 388 Mass. at 438 (identifying information is considered not only from the viewpoint of the public, but also from the vantage of those who are familiar with the individual). As such, I decline to opine upon the applicability of the specified provision of HIP AA as it operates through Exemption ( a) of the Public Records Law. Conclusion Whereas I find that the Commission may permissibly withhold the 911 audio file under Exemption ( c) of the Public Records Law, I will consider this administrative appeal closed. Sincerely, Rebecca S. Murr~ Supervisor of Records cc: S. Howey