Mark Barbadoro v. Department of Developmental Services (SPR 20181117)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 8, 2018 SPRlS/1117 Doreet Goldhaber Department of Developmental Services 500 Harrison A venue Boston, MA 02118 Dear Ms. Goldhaber: I have received the petition of Mark Barbadoro appealing the response of the Department of Developmental Services (Department/DDS) to a request for public records. G. L. c. 66, § IOA; see also 950 C.M.R. 32.08(1). Specifically, on July 10, 2018, Mr. Barbadoro requested "the addresses of and names of the companies that own dwelling in my city ..." The Department provided a response on July 24, 2018, denying access to responsive records pursuant to Exemptions (a) and (c) of the Public Records Law. G. L. c. 4, § 7(26)(a), (c). Unsatisfied with the Department's response, Mr. Barbadoro petitioned this office and this appeal, SPR18/1 l 17, was opened as a result. While this appeal was pending, the Department provided supplemental responses on August 6, 2018 and August 7, 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, § IOA(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, § IO(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. 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

Doreet Goldhaber SPR18/l l 17 Page2 August 8, 2018 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 Department's July 2/h response In its July 24, 2018 response, the Department indicates that it "is not the custodian of public records concerning the ownership of dwellings in Fitchburg. Information concerning 'ownership' of property in the City of Fitchburg is maintained by the Worcester Northern District Registry of Deeds." The Department asserts "[t]o the extent that [Mr. Barbadoro's] PRR seeks records in the custody of DDS that include the residential addresses of [the Department's] group homes in Fitchburg, such records are Exempt from disclosure pursuant to [Exemptions (a) and (c) of the Public Records Law." The Department also claims that its" ... denial of a PRR seeking [its] group home addresses was recently upheld by the Massachusetts Superior Court. See Hardiman vs. Mass. Dept. ofd evelopmental Services, Mass. Super. Ct. No. 2014-01561-H (Mar. 3, 2016)." Exemption (a) The Department cites G. L. c. 66A, the Fair Information and Practices Act (FIPA); G. L. c. 123B, §17; 42 U.S.C. 1320d, et seq,, the Health Insurance Portability and Accountability Act (HIPAA) and its implementing regulations 45 CPR Parts 160 and 164; and 115 C.M.R. 4.06, as they operate through Exemption (a) of the Public Records Law to withhold responsive records. 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 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

Doreet Goldhaber SPR18/1117 Page 3 August 8, 2018 individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. The statutes provide in relevant part: The department shall keep records of the admission, treatment and periodic review of all persons admitted to facilities under its supervision. Such records shall be private and not open to public inspection except (1) upon proper judicial order whether or not in connection with pending judicial proceedings, (2) that the commissioner shall allow the attorney of a patient or resident to inspect records of said patient if requested to do so by the patient, resident or attorney, and (3) that the commissioner may permit inspection or disclosure when in the best interest of the patient or resident as provided in the rules and regulations of the department. This section shall govern the patient records of the department notwithstanding any other provision of law. G. L. C. 123B, § 17. Access to Records and Record Privacy (2) Inspection by Other Persons. Records of an individual shall be private and not open to inspection by third parties, other than those in 115 CMR 4.06(1)), except as provided in 115 CMR 4.06(2). (a) Records shall be open to inspection by a third party upon informed consent by the individual or guardian: 1. Before consent is obtained, the individual or guardian shall be afforded an opportunity to examine the records to be released, and shall be provided with the name of the recipient, possible uses of the information, and possible risks and benefits of, and alternatives to disclosure. 2. A record of such authorization shall be included in the individual's record 115 C.M.R. 4.06(2)(a). Fair Information Practices Act (FIP A) The Department also cites FIP A, which imposes restrictions on the dissemination of "personal data," in support of its position to withhold responsive records. The Department is reminded that FIP A and the Public Records Law are to be construed to work together consistent with the legislative purpose. 32 Op. Atty Gen. Mass. 157, 160 (May 18, 1977). FIPA cannot provide a basis for withholding the requested information unless the records fall within a statutory exemption to the definition of public records. See Allen v. Holyoke Hosp., 398 Mass. 372, 379 (1986) (stating that "determining whether the record sought is protected by FIPA depends on whether the record is a public record pursuant to G. L. c. 4, § 7 Twenty-sixth, and

Doreet Goldhaber SPR18/1117 Page4 August 8, 2018 subject to the disclosure provisions of G. L. c. 66A"). FIP A, by itself, cannot justify withholding information. A custodian must first specifically explain how the withheld information is exempt from the Public Records Law. Once a record is found to be exempt from the definition of public records, FIP A may also operate to restrict disclosure. 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 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, 432-34 (1983). The first clause 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 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 (1987). Second clause ofE xemption (c) - privacy 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: (1) 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

Doreet Goldhaber SPR18/1 l 17 Page 5 August 8, 2018 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 disputes and reputation. Id. 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 in a law-abiding and efficient manner. Id. at 292. Under its Exemption (c) claim, the Department asserts that it" ... cannot disclose addresses of [t he Department's] group homes as any unauthorized release of information that directly or indirectly identifies individuals supported by [the Department] constitutes an unwarranted invasion of personal privacy ..." The Department further contends that the list of service providers under contract with the Department to operate group homes in Fitchburg is also being withheld because disclosure of the information" ... in consultation with other publicly available information such as assessor's data or street listings, presents a grave risk of identifying the residential addresses of [Department] group homes ... , and the identities and medical diagnoses of individuals residing in those homes." The Department's August 6, 2018 supplemental response In its August 6, 2018 response, referencing the above mentioned Hardiman decision and a Supervisor of Public Records determination, SPR14/176 (May 1, 2014), the Department asserts that its denial of access to records that would disclose its "group home addresses and information which could reasonably lead to the identification of such addresses and the individuals residing therein is consistent with its privacy/confidentiality obligations ... " Responding to claims made in Mr. Barbadoro's petition for appeal, the Department contends that its group homes are not subject to the special use and occupancy provisions of the Massachusetts State Building Code and the regulations of the Architectural Access Board (AAB) because the codes have a "longstanding exception for [Department] group homes ...." the Department includes a document, Joint Memorandum from Department ofP ublic Safety and DDS Regarding the Classification ofD DS Group Homes under the State Building Code, to support this position. The Department also contends that "the environmental standards of the AAB ... only apply to 'public buildings."' The Department further cites "1975 Op. Att '.Y Gen. No. 68" and "Opinion oft he Justices, 313 Mass. 779 (1943)" to distinguish its group homes which are private residences from public buildings, which falls under the AAB.

Doreet Goldhaber SPR18/1117 Page 6 August 8, 2018 The Department's August 7, 2018 supplemental response In its August 7, 2018 response, the Department reiterates that disclosure of names of persons or organizations who own or operate the Department's group homes" ... is 'highly likely' to result in the identification of the specific group home addresses and the names and medical diagnoses of the individuals residing therein." The Department explains that "[i]f the names of individuals/organizations operating Department programs ... are disclosed, it is a simple matter of matching this information with other publicly available information, including but not limited to Assessor's data, to identify the residential addresses of [Department] residential programs in Fitchburg, and the identities and diagnoses of individuals residing in these programs. This is precisely the type of matching with publicly available information that was held to constitute an indirect identification in Hardiman." Burden ofs pecificity Pursuant to the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. G. L. c. 66, § 1O (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 exemption or exemptions upon which the withholding is based ... "); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. With respect to Exemption (a), based on the Department's response, it is unclear how the above referenced statutes permit the Department to withhold the requested information or how it constitutes "protected health information" under HIP AA or "personal data" under FIP A. With respect to Exemption ( c ), although the Department claims that the provision of the requested information is likely to cause an individual to match this information with other publicly available information to identify residential addresses of the Department's residential programs and the identities and medical diagnoses of individuals residing in these programs, I find that the Department has not demonstrated that providing the responsive records could lead to the direct or indirect identification and medical diagnoses of individuals residing in the Department's residential programs. In its June 24th response, the Department had indicated that "[i]nformation concerning 'ownership' of property in the City of Fitchburg is maintained by the Worcester Northern District Registry of Deeds." However, in his petition for appeal, Mr. Barbadoro claims the Department "collects and keeps all applications for certificates and the information that I'm looking for is on them." In light of Mr. Barbadoro's claim, it is unclear if the Department possesses the responsive records. A custodian is expected to use their superior knowledge of the records in their custody to assist the requester in obtaining the desired information. The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian ofrecords at the time of the request. See G. L. c. 66, § lO(a)(ii).

Doreet Goldhaber SPR18/l l l 7 Page 7 August 8, 2018 Further, in his July I oth request, Mr. Barbadoro indicated that he was requesting "the addresses of and names of the companies that own dwellings in my city ..." (emphasis added). However, in his petition for appeal, Mr. Barbadoro indicates that he had "asked for documentation that contains the names of persons or organizations that own or operate facilities that are licensed or certified through [the Department] ... " (emphasis added). Based on the foregoing, Mr. Barbadoro must clarify the records he is requesting from the Department. A request for public records must reasonably describe the records sought. See G. L. c. 66, § IO(a)(i). 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 withhold the requested records in their entirety, accordingly, the Department is ordered to provide Mr. Barbadoro 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. Mr. Barbadoro noted in his appeal that he is willing to clarify any questions the Department may have to resolve the matter. As such, the Department and Mr. Barbadoro are encouraged to communicate further to enable the Department to provide the requested records sought. Sincerely, Rebecca S. Murray Supervisor of Records cc: Mark Barbadoro