Dan Glaun v. Department of Public Health (SPR 20180945)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 10,2018 SPRl81945 Helen Rush-Lloyd Records Access Officer Department of Public Health Boston, MA Dear Ms. Rush-Lloyd: I have received the petition of Dan Glaun of Masslive appealing the response of the Department of Public Health, Division of Health Care Facility Licensure and Certification (Department) to a request for public records. G. L. c. 66, 5 10A; see also 950 C.M.R. 32.08(1). Specifically, on May 16, 201 8 Mr. Glaun initially requested a copy of: "incident reportslnarratives for acute care surgical events, acute care hospital environmental events, acute care patient protection events, acute care potential criminal events, acute care hospital care management events for serious injury or death from medication error, serious injury or death from loss of irreplaceable biological specimen, unsafe blood transfusion and serious injury or death from lack of follow up or communication of lab result, from January 1,2017 to May 1, 2018." The Department provided Mr. Glaun with a fee estimate, and on May 30,2018, Mr. Glaun revised his request. The Department provided Mr. Glaun with an estimate of $850.00 in response to the May 3ot" revised request. June 6 revised request - subject of tlzis appeal On June 6,201 8, Mr. Glaun revised his request for a second time. On June 6th,M r. Glaun revised his request to: "Serious reportable event documentation, including report narratives, for the following categories from January 1,201 7 to February 1,201 7 regarding wrong site surgery or procedure, surgery or procedure on wrong patient, wrong surgery or procedure, acute care hospital environmental events and sexual assaultlabuse." On June 19,2018 , the Department provided Mr. Glaun with redacted responsive records. The Department redacted the records pursuant to Exemptions (a) under the Fair Information One Ashburton Place, Room 1719, Boston, Massachusetts 02108 * (61 7) 727-2832. Fax: (617) 727-5914 sec.state.ma.us/pre pre@sec.state.ma.us

Helen Rush-Lloyd Page 2 July 10,2018 Practices Act (FIPA), Exemption (c) and Exemption (f) of the Public Records Law. As a result of the redactions, Mr. Glaun petitioned the Supervisor of Records (Supervisor) and this appeal was opened. In his June 26, 201 8 petition, Mr. Glaun indicates that while he acknowledges that the Department has a right and obligation to protect patient privacy, including medical privacy, he believes that the Department's redactions are overly broad. TIze 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 1O A(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) (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 see exemption or exemptions upon which the withholding is based.. ."); 950 C.M.R. 32.06(3); also Dist. Attorney for the Norfolk Dist. v. Flatley, 41 9 Mass. 507, 5 11 (1 995) (custodian has the burden of establishing the applicability of an exemption). The Department's June 19,2018 response The Department's June 19'~re sponse that accompanied the redacted responsive records indicated that the Department withheld patient names and information under FIPA as it operates through Exemption (a) and Exemption (c), and the names of reporters, witnesses and accused under Exemption (f) of the Public Records Law. On July 2,2018 , a Public Records Division staff attorney discussed this appeal with you. In camera inspection As suggested by the Public Records Division staff attorney, this office may seek an in camera inspection of the responsive reports. At this time, in order to facilitate a final determination as to the applicability of the redactions under the exemption claims made by the Department, I request that the Department provide this office an un-redacted copy of the responsive investigation report and settlement agreement for in camera inspection without delay. See 950 C.M.R. 32.08(4). After I complete my review of the documents, I will return the records to your custody and issue an opinion on the public or exempt nature of the withheld portions of the records. The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G. L. c. 66, 5 1.

Helen Rush-Lloyd Page 3 July 10,2018 This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Massachusetts Comm'n Against Discrimination, 384 Mass. 198, 206 (1 98 1) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). Furthermore, this office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. As explained to you and Attorney Rodman on July 2nd,t he Department may provide this office with an explanation of its position regarding the applicability of an exemption to the responsive records, or redacted portions of the responsive records. However, please be advised that, unlike the materials provided for in camera review, any such additional correspondence would be placed in the file for this appeal and would be subject to public disclosure as a public record. Order Accordingly, the Department is ordered to provide this office with an un-redacted copy of the Serious Reportable Incident Reports that are subject of Mr. Glaun's appeal. Sincerely, Rebecca S. Murray V Supervisor of Records cc: Dan Glaun