Darlene Pernice v. Board of Registration in Medicine (SPR 20181216)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 27,2018 SPR1811216 Gerald F. Dolan, Esq. Assistant General Counsel Board of Registration in Medicine 200 Harvard Mill Square, Suite 330 Waltefield, MA 018 80 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, § IOA; see also 950 C.M.R. 32.08(1). Specifically, on July 24,201 8, Ms. Pernice requested "all correspondence, documentations and emails, internal and external pertaining to [an identified individual] during the time frame of January 01, 1993 to July 25,20 18." On August 6,201 8, the Board responded to her request by providing some responsive records and indicating others have been redacted or withheld in their entirety pursuant to Exemptions (a) and (c) of the Public Records Law. G. L. c. 4, § 7(26)(a), (4. 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, 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, 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, 41 9 Mass. 507, 5 11 (1 995) (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 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 August 27,20 18 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. The Board's August 6t'z response In its August 6th response, the Board indicates that it provided Ms. Pernice with " 10 1 pages of records responsive to [her] request," and states that "certain portions of the records have been redacted andlor some records withheld from production due to an exemption pursuant to G.L. c. 4, 5 7(26)." The Board lists various types of information it has redacted or withheld and cites to several statutes including Exemptions (a) and (c) of the Public Records Law, regulations, a Board policy and previous determinations by the Supervisor of Public Records as its basis. Exemption (a) Exemption (a), laown 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 (1 979); 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 individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. The Board cites to the following statutes, regulations and policy: G. L. c. 66A, 5 2; G. L. c. 93H; Board Policy 98-02; G. L. c. 1 12, 5 5; 243 C.M.R. 2.13(2-4), 2.14(2); 243 C.M.R. 1.02(8)(c)(l); HIPAA, Pub. L. 104-191, 110 Stat. 1936 (1996); 45 CFR 164.51 4(B)(2)(i); 243 C.M.R. 1.08(2)(~)(2)(,5 ); 243 C.M.R. 1.02(8)(~)(6).

Gerald F. Dolan, Esq. Page 3 August 27,20 18 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 identiJiable a. individual and is of a "personal nature." at 434. Medical information that is of a personal nature and relates to a speczjically 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). 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. People for the Ethical Treatment of Animals (PETA) v. Dep't of Aaric. 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. 41 5,427 (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 4 August 27,2018 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 Public Records Law states that "the burden shall be upon the custodian to prove with speczjicity the exemption which applies." G. L. c. 66, fj lO(b)(iv)(emphasis added); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The Board's response did not contain the specificity required in a denial of access to public records. Instead, the Board's response merely cites Exemptions (a) and (c) and various other statutes, regulations and a Board policy without sufficient explanation as to the exemptions' applicability to the requested records. The Board is not permitted to issue a blanket denial without providing any further information with respect to the requested records. As a result, I find that the Board did not satisfy its burden in responding to this records request. The Board is advised that a records custodian is required to not only cite an exemption, but to specifically explain the applicability of the exemption to the requested records in order to comply with the Public Records Law and its Access Regulations. Conclusion Given that the Board has not met its burden to explain how an exemption applies to the requested records, the requested records may not be withheld. Accordingly, the Board is ordered to review the records, redact where necessary, and provide Ms. Pernice 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. The Board may file a request for reconsideration of this determination within ten business days of the date of this determination letter. Sincerely, Rebecca S. Murray Supervisor of Records cc: Darlene Pernice