Christine Willmsen v. Bristol County Sheriff's Office (SPR 20191496)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 9, 2019 SPR19/1496 Robert Novack, Esq. Bristol County Sheriff's Office 400 Faunce Corner Road North Dartmouth, MA 02747 Dear Attorney Novack: I have received the petition of Christine Willmsen of WB UR appealing the response of the Bristol County Sheriff's Office (Office) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Ms. Willmsen requested "[a]ll internal affairs reports, reviews, audits and/or investigations regarding a death of anyone while in the custody of the Bristol County Sheriff's Office who died on the following days: 10/25/2012[;] 3/16/2012[;] 12/26/2010[;] 11/11/2009[;] 3/11/2009[;] 6/13/2008." The Office responded on July 17, 2019, claiming it does not possess certain records and denying access to portions of the records under . the Health Insurance Portability Accountability Act (HIP AA), as it operates through Exemption (a) of the Public Records Law. G. L. c. 4, § 7(26)(a). Unsatisfied with the Office's response, Ms. Willmsen petitioned this office and this appeal, SPR19/1496, was opened as a result. While this appeal was pending, the Office provided a supplemental response dated July 29, 2019. 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

Robert Novack, Esq. SPR19/1496 Page 2 August 9, 2019 If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1O (b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Office's July 11" and July 291 responses. " In its July 17, 2019 response, the Office indicates that it has "no records of custodial deaths on 08-30-2017 or 06-16-2013. The other inmates died of natural causes at various hospitals and any records would be protected confidential information under HIP AA." In its July 29, 2019 supplemental response, the Office asse1is that the requested records " ... are medical records and incident reports of inmates who died while technically in [t he Office's] custody." The Office explains that "[t]hese inmates[] did not die at the [Office] but expired from natural causes during treatment at various hospitals. Although they were technically in the custody of the [Office], [it] would not have any incident reports." The Office further asserts that "prisoner medical records are included within the HIP AA privacy rule and could not be disclosed by [the Office]." The Office states that "[t]he bulk of any such records however, would reside with the various hospitals in any event." Burden of specificity; segregable portions Pursuant to the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. G. L. c. 66, § 1O (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 ... "); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. Although the Office indicates that it does not possess incident reports and claims that "any records would be protected confidential information under HIP AA[,]" the Office did not identify the records, categories of records or po1iions of records in its possession that it intends to withhold from disclosure. The Office is reminded that to deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or pmiions of the record it intends to withhold. G. L. c. 66, § lO(b)(iv); see also 950 C.M.R. 32.06(3)(c)(4). Consequently, the Office must identify any records, categories of records or pmiions of records it is withholding under Exemption (a). Further, based on the Office's response, although portions of the records may contain medical information, it is unclear why the Office cannot provide the records in a de-identified manner to prevent the disclosure of protected health information. Particularly, it is unclear how requested records such as internal affairs repmis or audits can be withheld in their entirety as constituting medical records as the office claims. See Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable pmiion of a public record is subject to mandatory

Robert Novack, Esq. SPR19/1496 Page 3 August 9, 2019 disclosure. G. L. c. 66, § 1O (a). Conclusion Accordingly, the Office is ordered to provide Ms. Willmsen 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: Christine Willmsen