Dolly Cunningham v. Department of Public Health - Bureau of Health Professions Licensure (SPR 20190924)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords May 21, 2019 SPR19/924 Charlena Christiansen Office of Public Protection Bureau of Health Professions Li censure Department of Public Health 239 Causeway Street, Suite 500 Boston, MA 02114 Dear Ms. Christiansen: I have received the petition of Dolly Cunningham appealing the response of the Department of Public Health - Bureau of Health Professions Li censure (BHPL) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Ms. Cunningham requested all drug license applications pertaining to an identified physician. On May 9, 2019, the BHPL provided Ms. Cunningham with the responsive records, in a redacted format under Exemption ( c) and G. L. c. 66, § 1O B, as it operates through Exemption (a) of the Public Records Law. G. L. c. 4, § 7(26)(a), (c). As a result of the redactions, Ms. Cunningham petitioned the Supervisor of Records (Supervisor), and this appeal was opened. 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) (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 ... "); 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). 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

Charlena Christiansen SPR19/924 Page2 May 21, 2019 Exemption (a) The BHPL claimed it withheld certain of the information pertaining to the specifically named physician who is the subject of the record. The BHPL redacted the home and business addresses, and the personal email address of the physician under G. L. c. 66, § 1O B, as it operates through Exemption (a) of the Public Records Law. 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. G. L. c. 66, § JOB The BHPL cites G. L. c. 66, § lOB, as it operates through Exemption (a), as applicable to withhold information from the records. This statute provides in relevant part: ... The home address, telephone number, personal email address or place of employment or education ... of persons providing or training in family planning services ... shall not be public records in the custody of a government agency which maintains records identifying such persons as falling within such categories and shall not be disclosed. G. L. c. 66, § lOB. ?111 In a May 1 telephone conversation with a Public Records Division staff attorney, you

Charlena Christiansen SPR19/924 Page 3 May 21, 2019 confirmed that the subject of the record is a physician involved in family planning medical services. You explained that BHPL redacted the mailing address in addition to the business address because the mailing address is the same as the business address. It is also my understanding that the application does not contain a telephone number; however, the physician provided her home address and personal email address which BHPL redacted. The home address, business address and personal email address are restricted from disclosure by G. L. c. 66, § 1O B. Therefore, I find that the BHPL has met its burden in withholding the home address, business address and personal email of the physician in accordance with G. L. c. 66, § lOB, as it operates through Exemption (a). Exemption (c) The BHPL also withheld the physician's social security number under Exemption (c) of the Public Records Law. Exemption (c) applies to: 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). 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 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).

Charlena Christiansen SPR19/924 Page 4 May 21, 2019 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. I find the BHPL has met its burden to withhold the subject's social security number under the second clause of Exemption (c), as "an intimate detail of a highly personal nature." It is the type of information that Exemption (c ) was designed to protect, and such information that an individual would go to great lengths to keep private. See Doe v. Registrar of Motor Vehicles. Conclusion Accordingly, where BHPL has properly withheld the redacted information under Exemption ( c) and G. L. c. 66, § 1O B, as it operates through Exemption ( a), I will consider this administrative appeal closed. If Ms. Cunningham 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, § lO(b) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, ~~ Supervisor of Records cc: Dolly Cunningham Helen Rush-Lloyd