Greg Hard v. Department of Public Health (SPR 20192083)

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

Rebecca S. Murray Supervisor of Records

October 23, 2019 SPR19/2083

~ 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 Greg Hard appealing the response of the Department of Public Health (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.MLR. 32.08(1). Specifically, Mr. Hard requested the following records:

“1) The number of all confirmed vape related respiratory illnesses discovered by DPH in the past 60 days. DPH can define ‘confirmed’ as per their SOP.

2) The number of illnesses reporting THC vape use, nicotine vape use, or combined THC/nicotine vape use

3) The number of THC-related illnesses related to vape cartridges purchased at Regulated Marijuana Dispensaries

4) The number of THC-related illnesses related to vape cartridges purchased illegally (black market)

5) All internal memos or other relevant communications relating to THC-related vape Illnesses with appropriate redactions

6) Documents containing statistical data on vape related illnesses used to inform such policy, including but not limited to the Governor’s Executive Order dated September 24 2019.”

On September 26, 2019, Mr. Hard narrowed his request in a telephone conversation to “vaping related lung disease reports received by the department.” On September 27, 2019, Mr. Hard made another public records request seeking “. . . data suggesting that people are getting sick from Juul products. . . .” The Department responded on October 9, 2019, denying access to responsive records pursuant to Exemptions (a), (c), (d), and (f) of the Public Records Law. G. L. c. 4, § 7(26)(a), (c), (d), (f). Unsatisfied with the Department’s response, Mr. Hard petitioned this office and this appeal, SPR19/2083, was opened as a result.

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 SPR19/2083 Page 2 October 23, 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, § 10A(d); 950 C.M.R. 32.03(4). “Public records” is broadly defined to include ali 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, § 10(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 provided. G. L. c. 66, § 10(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 October 9" response

In its October 9, 2019 response, the Department asserts that its “. . . investigation of unexplained vaping associated pulmonary disease in Massachusetts is ongoing and no conclusions have yet been reached with regard to the cause of this disease. All vaping related _ lung disease case reports (‘intake forms’) received by [the Department] are exempt from disclosure as public records. .. .” The Department also indicates that “. . . to the extent any records exist that are responsive to [Mr. Hard’s] second request . . . those records are also exempt ~ from disclosure under the following exemptions.

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

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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.

Under Exemption (a), the Department states that the information is exempt under this exemption, because it is “. .. personal data protected from disclosure pursuant to G. L. c. 66A, the Massachusetts Fair Information Practices Act [(FIPA)].”

Fair Information Practices Act (FIPA)

The Department is reminded that FIPA 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 FIPA depends on whether the record is a public record pursuant to G. L. ¢. 4, § 7 Twenty-sixth, and subject to the disclosure provisions of G, L. c. 66A”). FIPA, 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.

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). First clause of Exemption (c) — medical

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

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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 Co., 388 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).

To the extent that records contain medical information related to an identifiable individual, I find the Department may withhold such portions from the responsive records.

Second clause of Exemption (c) — privacy

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).

‘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.

‘Under Exemption (c), the Department indicates that “[i]ntake forms received as part of [its] ongoing investigation of unexplained vaping associated pulmonary disease . . . are exempt ,.,as they... contain private information, the disclosure of which may constitute an unwarranted invasion of personal privacy.” The Department also states that the “withheld information is of a highly personal nature and contains specific details, which may identify individuals. The individuals’ privacy interests outweigh the public interest in disclosure.”

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In its response, the Department states that the records which contain information “... ofa highly personal nature and .. . specific details, which may identify individuals[,]” are exempt because, “[t]he individuals’ privacy interests outweigh the public interest in disclosure.” However, it remains unclear how personal information cannot be redacted from the responsive records to preserve the anonymity of these individuals. 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 portion of a public record is subject to mandatory disclosure. G, L. c. 66, § 10(a).

Exemption (d) Exemption (d) allows the withholding of:

inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this subclause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based

G. L. ¢. 4, § 7(26)(d).

Exemption (d) is intended to avoid premature release of materials that could taint the deliberative process if disclosed. Its application is limited to recommendations on legal and policy matters found within an ongoing deliberative process. See Babets v. Sec’y of the Exec. Office of Human Servs., 403 Mass. 230, 237 n.8 (1988). Factual reports which are reasonably complete and inferences which can be drawn from factual investigations, even if labeled as opinions or conclusions, are not exempt as deliberative or policy making materials. G. L. c. 4, § 7(26)(d); see also Envtl. Protection Agency v. Mink, 410 U.S. 73, 89 (1973) (purely factual matters used in the development of government policy are subject to disclosure).

Under Exemption (d), the Department asserts that the information has been withheld “. .. in order to protect the integrity of policies under development relating to this disease outbreak.”

The Department’s response does not explain with specificity what policy positions are being developed, nor does it explain how their disclosure would taint the deliberative process. The response metely states that the records have been withheld “. . . in order to protect the integrity of policies under development relating to this disease outbreak.” As a result, the - Department has not sufficiently explained how the records are exempt from disclosure in their entirety pursuant to Exemption (d). The Department is reminded that “reasonably completed factual studies or reports on which the development of such policy positions has been or may be based” are not permitted to be withheld. See G. L. c. 4, §7 (26)(d).

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Exemption (f) Exemption (f) permits the withholding of:

investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest .

G.L.c. 4, § 7(26)(£).

A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 371 Mass 59, 62 (1976). Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses, Antell v. Attorney Gen., 52 Mass. App. Ct. 244, 248 (2001); Reinstein, 378 Mass, at 290 n.18. Exemption (f) invites a “case-by-case consideration” of whether disclosure “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” See Reinstein, 378 Mass. at 289-90.

Under Exemption (f), the Department claims that the records are exempt because, “. . . disclosure of this information could compromise future investigative efforts and, therefore, is not in the public interest. Moreover, exemption (f) allows investigative officials to provide an assurance of confidentiality to private citizens so that they will speak openly about matters under investigation. As such, the public disclosure of the above-referenced withheld information creates a grave risk to the Department’s ability to conduct future investigations.”

Although the Department claims that disclosure of the requested records “. . . could compromise future investigative efforts . . .[,]” I find the Department did not demonstrate how disclosure of the records, even in a redacted format, “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest” as required to withhold records under Exemption (f). See id. Particularly, the Department did not provide supporting information to demonstrate how disclosure would compromise or negatively impact its future investigative efforts.

Further, with respect to the September 27" request, the Department states that “. . . to the extent any records exist that are responsive to [Mr. Hard’s] second request . . . those records are also exempt from disclosure under the following exemptions.” Based on the Department’s response, it remains unclear whether the Department possesses records that are responsive to this request. The Department 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 portions of the record it intends to withhold. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3)(c)(4). Therefore, the

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Department must identify the type of record(s) it has that are responsive to Mr. Hard’s second request.

In his appeal petition, Mr. Hard states “[w]e requested a very specific subset of information contained within these case reports. We certainly expected appropriate redactions. We also made it clear that summary public health data on illness sources is acceptable. This was made clear on a phone call . . . on September 25"",” Based on Mr, Hard’s statement, I find the Department must clarify whether responsive records exist.

Further, Mr. Hard states that “. .. we’d be glad to discuss modifications to the request so long as key information — known information regarding the source of the affected vape products — is included.” Accordingly, this office encourages Mr. Hard and the Department to continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii) (an agency shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency to produce records sought more efficiently and affordably).

Conclusion

Accordingly, the Department is ordered to provide Mr. Hard 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.

Lbeoca

becca S. Murray Supervisor of Records

cc: Greg Hard