Ryan Bagwell v. Department of Public Health (SPR 20181254)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 30, 2018 SPRlS/1254 Helen Rush-Lloyd Department of Public Health 250 Washington Street Boston, MA 02108 Dear Ms. Rush-Lloyd: I have received the petition of Ryan Bagwell appealing the response of the Department of Public Health (Department) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Bagwell requested "[t]he complete investigative file for [an identified matter]," "[a]ll minutes of discussions involving [the identified matter]," and "[a]ll letters sent to ... the subject of the complaint." The Department responded to his request providing responsive records redacted pursuant to Exemption ( c) of the Public Records Law and withheld other records pursuant to G. L. c. 112, § 65C as it operates through Exemption (a) of the Public Records Law. G. L. c. 4, § 7(26)(a), (c). 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 fornrorcharacte:ristics, 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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1 O(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 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre• pre@sec.state.ma.us

Helen Rush-Lloyd SPR18/1254 Page2 August 30, 2018 The Department's response The Department indicates that "[t]o the extent that [it] possesses records responsive to [Mr. Bagwell's] request, minutes held in 65C Session are withheld from production because they are subject to exempt from disclosure as a public record pursuant to [Exemption (a) of the Public Records Law] and M.G.L. c. 112, s.65C." The Department further indicates that it has provided "53 pages of responsive records" and "[p]ortions of these documents have been redacted under [Exemption (c) of the Public Records Law], because they include materials or data relating to specifically named individuals, the disclosure of which may constitute an unwarranted invasion of personal privacy." Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding ofrecords 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 irufuridual.R or entitie~whomthe records are to he provided; the statute must expressly limit access to the listed individuals or entities. The statute provides in relevant part: Meetings of the boards held for the purpose of conducting investigative conferences prior to the issuance of an order to show cause or for purposes of discussing the terms of a negotiated settlement of a complaint against a licensee shall not be considered open meetings within the meaning of section 1 lAl/2 of chapter 30A, but a licensee shall have access to records of any meetings

Helen Rush-Lloyd SPR18/1254 Page 3 August 30, 2018 concerning the licensee as may be necessary for the defense of his license at an adjudicatory proceeding G. L. C. 112, § 65C. 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 G. L. c. 4, § 7(26)(c). 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. 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 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 paternity,substance abuse, go ve1mnent assistance, family -------tr.-rn"rffl>Ft-+1.f tf't't-ttti~-f"l'l-!'tt't1.f fi+~r+tt<r-', 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 secunty 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, 4 77 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.

Helen Rush-Lloyd SPR18/1254 Page 4 August 30, 2018 Specificity The Public Records Law states that "the burden shall be upon the custodian to prove with specificity the exemption which applies." G. L. c. 66, § 1O (b )(iv)( emphasis added); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The Department's response did not contain the specificity required in a denial of access to public records. Instead, the Department's response merely cites Exemptions (a) and (c) without any further explanation as to the exemption's applicability to the requested records. The Department 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 Department did not satisfy its burden in responding to this records request. The Department 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. Additionally, the Department must provide a response to Mr. Bagwell that provides additional information regarding whether the Department possesses responsive records. See G. L. c. 66, § lO(b)(iv) (a written response shall "identify any records, categories ofrecords 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, 419 Mass. at 511 (c ustodian has the burden of establishing the applicability of an exemption). Conclusion Given that the Department has not met its burden to explain how an exemption applies to the requested records, the requested records may not be withheld. Accordingly, the Department is ordered to review the records, redact where necessary, and provide Mr. Bagwell 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 Department may file a request for reconsideration of this determination within ten business days of the date of this determination letter. Sincerely, tliJUU~ Rebecca S. Murray Supervisor of Records cc: Ryan Bagwell