James Lowe v. Department of Public Health (SPR 20190587)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 4, 2019 SPR19/0587 Helen Rush-Lloyd Department of Public Health 250 Washington Street Boston, MA 02108 Dear Ms. Rush-Lloyd: I have received the petition of James Lowe of the Republican 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. Lowe requested "all records or correspondence sent or received by DPH and/or OEMS pertaining to any violations, correction orders, plans or correction, serious incident reports, accident notifications and/or any other actionable incidents pertaining to National Ambulance, 425 St. James Ave., Springfield, MA 01109, from Jan. 1, 2009, to the present." The Department responded to his request by providing responsive records redacted pursuant to Exemptions (a) and (c) 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, § lOA(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, 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

Helen Rush-Lloyd SPR19/0587 Page 2 April 4, 2019 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. Exemption (a) 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 individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. The statute provides in relevant part: "'Personal data", any information concerning an individual which, because of name, identifying number, mark or description can be readily associated with a particular individual; provided, however, that such information is not contained in a public record, as defined in clause Twenty-sixth of section seven of chapter four and shall not include intelligence information, evaluative information or criminal offender record information as defined in section one hundred and sixty-seven of chapter six. G. L. c. 66A § 1. Exemption (c) Exemption ( c) permits the withholding of:

Helen Rush-Lloyd SPR19/0587 Page 3 April 4, 2019 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, 432-33 (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). Pending litigation In Mr. Lowe's petition for appeal he indicates that "the accidents at issue are the subject of ongoing litigation ... Behzad Samimi filed a lawsuit against National Ambulance, Lydia Bys, and Jennifer Monson-Bishop, claiming that 'while being transported via ambulance,' personnel dropped him to the ground 'causing injury, pain and suffering.' Behzad Samimi v. National Ambulance LLC, et al., Joint Pre-Trial Memorandum, Hampden County Superior Court, Case No. 1679-CV-0921, April 26, 2018." Mr. Lowe additionally indicates that "Jose Morales filed a lawsuit against National Ambulance and Paul Brunetti, claiming that they were negligent when Mr. Brunetti 'operated his motor vehicle carelessly and negligently so as to cause his vehicle to strike [Mr. Morales'] moped.' Jose Morales v. Paul Brunetti & National Ambulance LLC, Complaint, Hampden County Superior Court, Case No. 17-907, Dec. 22, 2017." 950 C.M.R. 32.08(2)(b) provides in pertinent part: the Supervisor may deny an appeal for, among other reasons if, in the opinion of the Supervisor: 1. the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation. Whereas the requested records at issue in this appeal relate to the subject matter of lawsuits against National Ambulance, LLC, which, according to Mr. Lowe's petition for appeal, were brought following ambulance crashes and subsequent personal injuries, I find these records are the subject of dispute in active litigation. Therefore, I decline to opine on this matter. See 950 C.M.R. 32.08(2)(b)(l); Behzad Samimi v. National Ambulance LLC, et al., Hampden County Superior Court, Case No. 1679-CV-00921; Jose Morales v. Paul Brunetti & National Ambulance LLC, Hampden County Superior Court, Case No. 1779-CV-00907. It should be noted that a

Helen Rush-Lloyd SPR19/0587 Page 4 April 4, 2019 change in the status of this action could impact the applicability of 950 C.M.R. 32.08(2)(b)(l). If Mr. Lowe is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 1O (b) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Rebecca S. Murray Supervisor of Records cc: James Lowe