Cody Shepard v. Department of Public Health (SPR 20192196)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 13, 2019 SPR19/2196 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 Cody Shepard of The Brockton Enterprise 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 September 25, 2019, Mr. Shepard requested "[a] list of human cases of Eastern equine encephalitis virus infection in 2019, including the town each victim lives in and the date the [Department] was notified about each case." Previous appeal The requested record was the subject of a previous appeal. See SPRl 9/2002 Determination of the Supervisor of Records (October 16, 2019). In my October 161 h determination, I found that the Depa1iment did not meet its burden of demonstrating how the requested record, in its entirety, was exempt from disclosure. Accordingly, I ordered the Department to provide Mr. Shepard with a response to the request, provided in a manner consistent with the order, the Public Records Law and its Regulations. Subsequently, the Department provided a response on October 29, 2019, denying access to responsive records pursuant to Exemptions (a) and (c) of the Public Records Law. G. L. c. 4, § 7(26)(a), (c). Unsatisfied with the Depa1iment's response, Mr. Shepard petitioned this office and this appeal, SPR19/2196, 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 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 SPR19/2196 Page 2 November 13, 2019 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. 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 Department's October 291 response " In its October 29, 2019 response, the Department indicated that the requested records are exempt from disclosure pursuant to Exemptions (a) and (c). The Department, however, indicated that an aggregate data" ... regarding Eastern Equine Encephalitis (EEE) including county name, age, date of onset, and vims result ... " is on its website, and provided a link to the information. 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.

Helen Rush-Lloyd SPR19/2196 Page 3 November 13, 2019 Under Exemption (a), the Department claims that the requested information is exempt, because it" ... is personal data protected from disclosure pursuant to M.G.L. c. 66A, the Massachusetts Fair Information Practices Act." Fair Information Practices Act (FJP A) The Depaiiment is reminded 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). FIP A 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. c. 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, FIP A 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). Second clause ofE xemption (c) - privacy 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 iri 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 Prope1iy 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).

Helen Rush-Lloyd SPR19/2196 Page 4 November 13, 2019 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 1nterest 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 claims that " ... the withheld information is of a highly personal nature and contains specific details which may identify individuals. The disclosure of this information would constitute an unwarranted invasion of privacy. The individuals' privacy interests outweigh the public interest in disclosure." In his appeal petition, Mr. Shepard states that he" ... is requesting the towns of the victims. Plymouth County, as of 2017, had 515,142 residents. The county has 27 communities. That's an average of more than 19,000 residents per community. Releasing that a person who lives in Brockton, for example, has contracted the EEE virus doesn't come close to identifying an individual." Based on Mr. Shepard's statement, it is unclear why the Department cannot disclose the towns of the victims. Particularly, it is uncertain how the name of the town constitutes personal data under Exemption (a) or an intimate detail of a highly personal nature under Exemption (c). It is additionally uncertain how disclosing the names of towns would lead to the identification of the individuals affected. The Depaiiment must clarify these issues. Conclusion Accordingly, the Department is ordered to provide Mr. Shepard with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) 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, ~y~ Supervisor of Records cc: Cody Shepard .