Darlene Pernice v. Board of Registration in Medicine (SPR 20181431)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division

Rebecca S. Murray Supervisor of Records

October 10, 2018 SPR18/1431

Gerald F. Dolan, Esq.

Assistant General Counsel

Board of Registration in Medicine 200 Harvard Mill Square Wakefield, MA 01880

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, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Ms. Pernice most recently 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, 2018.”

Previous appeals

This request was the subject of previous appeals. See SPR18/1039 Determinations of the Supervisor of Records (July 30, 2018; August 23, 2018); SPR18/1216 Determination of the Supervisor of Records (August 27, 2018); SPR18/1359 Determination of the Supervisor of Records (September 21, 2018). I closed SPR18/1350 by advising Ms. Pernice she could resubmit her appeal once she retrieved copies of all the documents required for an appeal to be opened with this office. Ms. Pernice resubmitted her petition for appeal in a letter dated September 24, 2018 and this appeal, SPR18/1431, was opened as a result.

Current appeal

In Board’s most recent response dated September 5, 2018, it included redacted records and further explanations of those redactions. In Ms. Pernice’s petition for appeal dated September 7, 2018, she indicates that with respect to the Board’s September 5h response, “Ti]tems are still blacked out. Where are we in this process? Is this acceptable? I understood that it was public information to know the areas that are blacked out.” Whereas, Ms. Pernice’s

petition for appeal takes issue only with the redacted portions, this determination will be limited accordingly.

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

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In my previous determinations, I found that the Board had met its burden and therefore was permitted to withhold certain information, which included the physician’s answers to questions that constitute the Board’s data repository under G. L. c. 112, § 5; 243 C.M.R. 213(Q- 4) and 243 C.M.R. 2.14(2) as they operate through Exemption (a), medical information under the first clause of Exemption (c) and the individual’s personal email address under the second clause of Exemption (c). See SPR18/1039 Determinations of the Supervisor of Records (August 23, 2018; July 30, 2018)

In its September 5" response, the Board indicates it has redacted or withheld records for the following reasons:

e Personal information, including but not limited to social security numbers, personal telephone numbers, personal email addresses, and dates of birth (see G.L. c. 4 § 7(26)(a) and (c); see also G.L. c. 66A, § 2; see also G.L. c. 93H);

e Personal medical information (see G.L. c. 4, § 7(26)(c); see also Determination of the Supervisor of Public Records, Docket No. SPR17/570);

e Records obtained by and/or retained in the Board’s Data Repository, including answers to certain questions appearing on application and/or renewal forms (see G.L. c. 4, § 7(26)(a); see also G.L. c. 112, 5, and 243 CMR 2.13(2) through (4) and 2.14(2); see also Determinations of the Supervisor of Public Records, Docket Nos. SPR88/406, SPR88/275, SPR18/1039);

e Information that could be used to identify complaints and/or patients (see G.L. c. 4, § 7(26)(a) and (c); see also 243 CMR 1.02(8)(c)(1); see also Health Information Portability and Accountability Act (“HIPAA”), Pub. L. 104-191, 110 Stat. 1936 (1996), and 45 CFR 164.514(B)(2)(i); see also Determination of the Supervisor of Public Records, Docket No. SPR17/570);

e Disciplinary Unit files, including records of Disciplinary Unit’s investigation of any disciplinary matter (see G. L. c. 4, § 7(26)(a); see also G.L. c. 112, § 5, and 243 CMR 1.08(2)(c)(2) and (5); see also Determinations of the Supervisor of Public Records, Docket Nos. SPR17/1073, SPR18/179, and SPR18/208); and

e Records of closed complaints that have been determined to be frivolous or lacking in legal merit or factual basis, or records of complaints that have been determined to fall outside the Board’s jurisdiction to investigate (see G.L. c. 4, § 7(26)(a); see also G.L. c. 112, § 5, and 243 CMR 1.02(8)(c)(6)).

The redacted records include a listing of the corresponding legal basis for each redacted portion.

Exemption (a)

Exemption (a), known as the statutory exemption, permits the withholding of records that are:

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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 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 45 C.F.R. 164.514(B)(2)(i) as it relates to disclosures of protected health information, which states that “[a] covered entity may determine that health information is not individually identifiable health information only if:”

The following identifiers of the individual or of relatives, employers, or household members of the individual, are removed: (A) Names; (B) All geographic subdivisions smaller than a State, including street address, city, county, precinct, zip code, and their equivalent geocodes, except for the initial three digits of a zip code if, according to the current publicly available data from the Bureau of the Census: (1) The geographic unit formed by combining all zip codes with the same three initial digits contains more than 20,000 people; and (2) The initial three digits of a zip code for all such geographic units containing 20,000 or fewer people is changed to 000. (C) All elements of dates (except year) for dates directly related to an individual, including birth date, admission date, discharge date, date of death; and all ages over 89 and all elements of dates (including year) indicative of such age, except that such ages and elements may be aggregated into a single category of age 90 or older; (D) Telephone numbers; (E) Fax numbers; (F) Electronic mail addresses; (G) Social security numbers; (H) Medical record numbers; (1) Health plan beneficiary numbers; (J) Account numbers; (K) Certificate/license numbers; (L) Vehicle identifiers and serial numbers, including license plate numbers; (M) Device identifiers and serial numbers; (N) Web Universal Resource Locators (URLs); (O) Internet Protocol (IP) address numbers; (P) Biometric identifiers, including finger and voice prints;

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(Q) Full face photographic images and any comparable images; and (R) Any other unique identifying number, characteristic, or code, except as permitted by paragraph (c) of this section.

45 C.E.R. 164.514(B)(2)(i).

The Board cites to 243 C.M.R. 1.02(8)(c)(1), as it relates to the Board's records of disciplinary matters, and states the following:

Closed complaint files, which contain the complaint and other information in matters which have been dismissed or otherwise resolved without adjudication, are public records. The name or a complainant or patient and relevant medical records shall be disclosed to the Respondent, but this information is otherwise confidential. The names of reviewers and the contents of complaint reviews shall be confidential.

243 C.M.R. 1.02(8)(c)(1). 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. ¢. 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, 432-33 (1983). The first clause, relevant to this determination, 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 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.

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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 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.

Personal information, including but not limited to social security numbers, personal telephone numbers, personal email addresses, and dates of birth

Upon review of the redacted records, it appears the Board has redacted the physician’s home phone number, state of birth and date of birth and social security number pursuant to Exemption (c) of the Public Records Law.

As cited by the Board, this office has previously found that “any public interest in the disclosure of potentially personal email addresses and telephone numbers of private citizens does not outweigh the privacy interest” held by those individuals. See SPR18/291 Determination of the Supervisor of Records (April 26, 2018). SPR18/291 specifically dealt with contact information provided by Certified Public Accountants to the Division of Professional Licensure. Here, based on the Board’s response, I find these facts to be sufficiently similar to those in SPR18/291 to warrant nondisclosure of the physician’s home telephone number. Specifically, because it is a personal telephone number of a non-government employee, there is no compelling public interest in disclosure that outweighs the privacy interests. Accordingly, whereas I find that any public interest in the disclosure of the personal telephone number of a physician as a private citizen does not outweigh the privacy interest, the Board properly withheld those redacted portions of the responsive records under the second clause of Exemption (c).

However, in light of the factors articulated in PETA, | find the Board has not demonstrated a strong privacy interest in the state of birth and date of birth of the physician within the responsive records. Therefore, I find the Board has not met its burden to withhold the

physician’s state of birth or date of birth under Exemption (c). See Doe v. Registrar of Motor

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Vehicles, 1 Mass. L. Rptr. 156, 21 (1993) (finding that an individual’s “date of birth is not information that a person of ‘normal sensibilities’ would go to great lengths to keep private’);

Flatley, 419 Mass. at 511 (custodian has the burden of establishing the applicability of an exemption).

I find the physician’s social security number may properly be withheld under the second clause of Exemption (c). See PETA 477 Mass. 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).

Personal medical information

To the extent that the information contained in the redacted portions contains medical information identifiable to an individual; it may properly be withheld under the first clause of Exemption (c). To the extent the information contained in the redacted portions creates a risk of indirectly identifying the individual the medical information relates to it may be withheld. See Globe Newspaper, 388 Mass. at 438 (identifying information is considered not only from the viewpoint of the public, but also from the vantage of those who are familiar with the individual).

Records obtained by and/or retained in the Board’s Data Repository

It is worth reiterating that to the extent the redacted portions include the physician’s answers to questions that constitute the Board’s data repository under G. L. c. 112, § 5; 243 C.M.R. 213(2-4) and 243 C.M.R. 2.14(2) as they operate through Exemption (a), those portions may be withheld. See SPR18/1039 Determination of the Supervisor of Records (July 30, 2018).

Information that could be used to identify complainants and/or patients; Disciplinary Unit files including records of the Disciplinary Unit’s investigation of any disciplinary matter

To the extent the information contained in the redacted portions creates a risk of indirectly identifying the complainant it may properly be withheld. See 45 C.F.R. 164.514(B)(2)(i). Relevant to those records deemed to be part of the physician’s disciplinary proceedings, to the extent that the redacted portions contain the name, complainant, patient or relevant medical records those portions may properly be withheld from disclosure. See 243 C.M.R. 1.02(8)(c)(1).

Conclusion

Given that the Board has not met its burden to explain how an exemption applies to the state of birth and date of birth, those portions of 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

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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. ca Mar

Supervisor of Records

cc: Darlene Pernice