Darlene Pernice v. Board of Registration in Medicine (SPR 20181039)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 30,2018 SPR18/1039 Gerald F. Dolan, Esq. Board of Registration in Medicine 200 Harvard Mill Square Wakefield, MA 0 1880 Dear Attorney Dolan: I have received the petition of Darlene Pernice appealing the response of the Board of Registration in Medicine (Board) to a request for public records. G. L. c. 66, 5 10A; see also 950 C.M.R. 32.08(1). Specifically, on June 23,2018 , Ms. Pernice requested "all correspondence, documentations and emails, internal and external pertaining to [an identified individual] during the time frame of January 1,201 7 to June 26,201 8." On June 26,201 8, the Board responded to her request providing responsive records redacted pursuant to Exemptions (a) and (c) of the Public Records Law. G. L. c. 4, 5 7(26)(a), (c). While this appeal was pending the Board provided another response on July 20,201 8, a copy of which was provided to this office. 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 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 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, 5 lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. One Ashburton Place, Room 171 9, Boston, Massachusetts 02 108 (6 17) 727-2832. Fax: (6 17) 727-5914 sec.state.ma.us/pre pre@sec.state.ma.us

Gerald F. Dolan, Esq. Page 2 July 30,2018 Tlze Board's June ~ 6&~ Ju"ly 2ot" responses Exemption (a) Exemption (a), lmown 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 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). The statute cited by the Board provides the following, in pertinent part: The board, including but not limited to the data repository and the disciplinary unit, shall keep confidential any complaint, report, record or other information received or kept by the board in connection with an investigation conducted by the board pursuant to this section, or otherwise obtained by or retained in the data repository; provided, however, that, except to the extent that disclosures of records or other information may be restricted as otherwise provided by law, or by the board's regulations, investigative records or information of the board shall not be kept confidential after the board has disposed of the matter under investigation.. . . The Board cites to its Policy 98-02 which states: The Board has adopted the following policy regarding release to the public of physician addresses: The Board maltes a licensee's business address available to the public and includes it in the physician's Profile. If a physician does not have a business address, the Board will malte public and use the physician's mailing address, even if that mailing address is the same as the physician's home address. The Board may release a home address upon written request from a party upon a showing of good cause; for example, when an attorney seeks a home address for purposes of service of process. Board of Registration in Medicine Policy 98-02 (Adopted November 20, 1998). The regulations cited by the Board provide the following:

Gerald F. Dolan, Esq. Page 3 July 30,2018 Pursuant to M.G.L. c. 11 2, 5 5, the Board shall maintain a Data Repository to compile all reports filed under M.G.L. c. 112, 55 5A through 5J, and reports filed under any other state or federal law or regulation requiring that information be reported to the Board, excluding Safety and Quality Reviews filed pursuant to M.G.L. c. 11 1 5 205. Mandated reports maintained in the Data Repository are confidential, unless otherwise required by law. The term Data Repository refers to the compilation of all mandated reports received by the Board, and includes the staff of the Data Repository Unit and the Data Repository Committee. There shall be a standing committee of the Board of Registration in Medicine lmown as the Data Repository Committee (DRC). The DRC shall have at least one member who also serves as a member of the Board of Registration in Medicine. The DRC or its staff shall oversee the review and referral of mandated reports maintained in the Data Repository, however, the Licensing Committee or its staff shall oversee the review and referral of licensing materials filed under M.G.L. c. 112, 5 2 through 9B. The DRC and its staff may review certain legal aspects of the Physician Profile Program and its online website. The Data Repository Committee (DRC) may review a mandated report. The DRC shall complete its review of a mandated report by issuing a confidential advisory letter to the licensee, or by declining to take further action, or by referring the report to another division of the Board. The DRC review process described herein is not an Adjudicatory Proceeding as defined in M.G.L. c. 30A, 5 1. The Data Repository records relating to any review of a mandated report shall be confidential, except as otherwise provided by law. 243 C.M.R. 2.13(2-4). A mandated report is a written filing, made to the Board of Registration in Medicine, by a reporter required to make the report pursuant to a state or federal law or regulation. The subject of a mandated report shall be a physician, registered with the Board as qualified to practice medicine in the commonwealth, including any person licensed pursuant to M.G.L. c. 11 2, 5 5 2 through 9B. Mandated reports maintained in the Data Repository are confidential, unless otherwise required by law. A mandated reporter is any entity or individual that is required, by state or federal law or regulation, to make a report to the Board of Registration in Medicine, except for reports filed with the Board pursuant to M.G.L. c. 111 , 5 205. Reports filed with the Quality and Patient Safety Division are not mandated reports as defined in 243 CMR 2.14(2). 243 C.M.R. 2.14(2).

Gerald F. Dolan, Esq. Page 4 July 30,201 8 Exemption (c) 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 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. The first clause creates a categorical exemption for personnel and medical information that relates to an identifiable Id. 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 Cornm. 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). 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 Comrn'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 Asric. Res., 477 Mass. 280, 292 (20 17). 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

Gerald F. Dolan, Esq. Page 5 July 30,201 8 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. Page 1 In its July 2othr esponse, the Board indicates that "[tlhe first page contains redactions of personal information that is exempt from production pursuant to G.L. c. 4, 5 7(26)(c). This information includes the physician's home address, personal email address, and drug license numbers. The public disclosure of this information would constitute an unwarranted invasion of the physician's personal privacy." The Board states the physician's home address is also exempt from production under Exemption (a) pursuant to Board Policy 98-02. Based on the Board's response, I find it has not met its burden to withhold this information under the claimed statutes. With respect to Exemption (c), it is unclear how this information constitutes an unwarranted invasion of personal privacy under the PETA analysis and whether it is outweighed by any public interest in obtaining this information. With respect to Exemption (a), this exemption applies to statutes and regulations with statutory authority; therefore, it is unclear how the Board's Policy 98-02 may be utilized through Exemption (a). See G. L. c. 4, 5 7(26)(a). Page 2 and 4 In its July 2othr esponse the Board indicates "[tlhe second page contains redactions of [an identified individual's] answers to nine (9) questions and the fourth page contains redactions of his answers to two (2) questions. All applicants for licensure are required by regulation to report the answers these questions to the Board. Theses answers are thus obtained by and retained in the Board's Data Repository." The Board cites to G. L. c. 112, 5 5 and concludes that "[tlherefore, the [identified individual's] answers to these questions are confidential by statute and are exempt from public production pursuant to G.L. c. 4, 5 7(26)(a)." In its June 26thr esponse, the Board additionally cited to 243 C.M.R. 2.13(2-4) and 243 C.M.R. 2.14(2) in support of its position. The Board additionally indicates that "the answers to the two (2) questions on the fourth page are also exempt from public production pursuant to G.L. c. 4, 5 7(26)(c), because they constitute medical information, the disclosure of which would constitute an unwarranted invasion of the [identified individual's] privacy. Specifically, these questions ask whether the [identified individual] has a medical condition or has used chemical substance(s) that interfere with his ability to practice medical." Given the Board's explanations, I find the Board has met its burden to justify the redactions on pages 2 and 4 under G. L. c. 112, 5 5; 243 C.M.R. 2.13(2-4) and 243 C.M.R. 2.14(2) as information in the Board's data repository. I additionally find the Board has met its burden to withhold medical information on page 4 under the first clause of Exemption (c).

Gerald F. Dolan, Esq. Page 6 July 30 ,201 8 Additional responsive records In its response, the Board indicates that "[wlhile there are no further responsive public records, if you are aware of records that you provided to the Board or which contain personal information about you, you may access these records pursuant to your unique right of access under the Fair Information Practices Act, G.L. c. 66A ('FIPA'). Please note that records of closed complaints that have been determined to fall outside of the Board's jurisdiction to investigate are confidential pursuant to G.L. c. 112, 5 5, and 243 CMR 1.02(8)(~)(6a)n d are therefore exempt from disclosure by statute. Thus, under G.L. c. 4, 5 7(26)(a), records pertaining to such complaints are not public records. Should you file a separate request under FIPA, the Board will search for any records responsive to such request." Based on the Board's response, it is unclear whether the Board possesses additional responsive records. The Board is advised that under the Public Records Law all documentary materials or data, regardless of physical form or characteristics, made or received by the Board is presumed to be a public record. G. L. c. 4, 5 7(26). As such any responsive documents in possession of the Board are presumed to be public records. See id. If the Board possesses additional documents and intends to withhold them, it must claim an exemption under the Public Records Law. See G. L. c. 66, 5 10(b)(iv); 950 C.M.R. 32.06(3). As a result, I find the Board has not met its burden in responding to this records request. See G. L. c. 66, 5 10(a-b). The Board must provide a response to Ms. Pernice that provides additional information regarding whether the Board possesses additional responsive records. See G. L. c. 66, 5 lO(b)(iv) (a written response shall "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.. ." ); Flatley, 4 19 Mass. at 5 11 (custodian has the burden of establishing the applicability of an exemption). Order Accordingly, the Board is ordered to provide Ms. Pernice with a response to the request, 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Darlene Pernice