(Anonymous) v. Department of Public Health (SPR 20191143)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords June 19, 2019 SPR19/1143 Helen Rush-Lloyd Records Access Officer Department of Public Health 250 Washington Street Boston, MA 02108 Dear Ms. Rush-Lloyd: I have received the petition of"Name Name" appealing the response of the Department of Public Health (Department) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on May 28, 2019, the requestor requested "all license renewal applications pertaining to the following licensed facilities: Planned Parenthood (and all its satellites), Women's Health Services, Four Women's Health Services LLC." The Department provided a response on June 4, 2019, which included responsive records in redacted form. The Department claims it redacted the records pursuant to Exemptions (a) and (c) of the Public Records Law. G. L. c. 4, § 7(26)(a), (c). Unsatisfied with the Department's response, the requestor petitioned this office and this appeal, SPR19/1143, was opened as a result. 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, § 1 O(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 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 SPR19/1143 Page2 June 19, 2019 provided. G. L. c. 66, § 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 Department's June 4th response In its June 4, 2019 response, the Department indicates that it enclosed 54 pages of responsive records with redactions. The Department claims that the records were redacted pursuant to Exemptions (a) and (c) of the Public Records Law. Exemption (a) The Department claims it withheld the names of employees under G. L. c. 66, § 1O B and G. L. c. 66A as they operate through Exemption (a) of the Public Records Law. 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 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: The home address and home telephone number of law enforcement, judicial, prosecutorial, department of youth services, department of children and families, department of correction and any other public safety and criminal justice system personnel, and of unelected general court personnel, shall not be public records in

Helen Rush-Lloyd SPR19/1143 Page 3 June 19, 2019 the custody of the employers of such personnel or the public employee retirement administration commission or any retirement board established under chapter 32 and shall not be disclosed. ... The home address and telephone number or place of employment or education of victims of adjudicated crimes, of victims of domestic violence and of persons providing or training in family planning services and the name and home address and telephone number, or place of employment or education of a family member of any of the foregoing 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. Under Exemption (a), the Department states that the records were redacted pursuant to this exemption because, the information " ... is personal data protected from disclosure pursuant to G.L. c. 66A, the Massachusetts Fair Information Practices Act." The Department further explains that "[t]he names and other identifying information of certain employees and staff at Planned Parenthood, Women's Health Services, and Four Women's Health Services LLC have been redacted pursuant to G.L. c. 66, § lOB which states that 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 disclosed. Because the location where these individuals work is known, in order to protect the identity of individuals who work in family planning, the Department has redacted their names." Based on the Department's response, where G. L. c. 66, § lOB does not contemplate the non-disclosure of the names of persons providing or training in family planning services, I find the Department has not met its burden to redact the names of employees from the responsive records. The Department must provide additional information regarding how it can redact the names of employees in this case, under G. L. c. 66, § 1 OB. Fair Information Practices Act (FIPA ) The Department is advised that FIP A and the Public Records Law are to be construed to work together consistent with the legislative purpose. 32 Op. Atty Gen. Mass. 157, 160 (May 18, 1977). FIPA cannot provide a basis for withholding the requested information unless the records fall within a statutory exemption to the definition of public records. See Allen v. Holyoke Hosp., 398 Mass. 372, 379 (1986) (stating that "determining whether the record sought is protected by FIP A depends on whether the record is a public record pursuant to G. L. c. 4, § 7 Twenty-sixth, and subject to the disclosure provisions of G. L. c. 66A"). FIP A, by itself, cannot justify withholding information. A custodian must first specifically explain how the withheld information is exempt from the Public Records Law. Once a record is found to be exempt from the definition of public records, FIPA may also operate to restrict disclosure.

Helen Rush-Lloyd SPR19/1143 Page4 June 19, 2019 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). Under Exemption (c), the Department explains that "Federal Identification Numbers have been redacted because that information is exempt from disclosure pursuant to G.L. c.4, § 7 (26)( c ). The redacted information is of a highly personal nature and contains specific details which may identify individuals." The Department asserts that "[t]he disclosure of this information would constitute an unwarranted invasion of privacy. The individuals' privacy interests outweigh the public interest in disclosure." Based on the Department's response, I find the Department has neither demonstrated that the federal identification numbers are intimate details of a highly personal nature nor how disclosure would result in personal embarrassment to an individual of normal sensibilities. It is additionally uncertain whether this information is available from other sources. PETA, 477 Mass. at 292. Further, although the Department states that "[t]he redacted information is of a highly personal nature and contains specific details which may identify individuals[,]" it remains unclear how the release of the federal identification numbers would identify individuals. The Department must clarify these issues. Conclusion Accordingly, the Department is ordered to provide the requestor with a response to the request, 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: "Name Name"