Kevin Sherlock v. Boston Public Health Commission (SPR 20192260)

The Commonwealth of Massachusetts, William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supe111isor of Records November 22, 2019 SPR19/2260 Batool Raza, Esq. Assistant General Counsel Boston Public Health Commission Office of General Counsel Boston, MA 02118 Dear Attorney Raza: I have received the petition of Kevin Sherlock appealing the response of the Boston Public Health Commission (Commission) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, on June 12, 2019, Mr. Sherlock requested "a list of service (fire, alarm, ambulance, emergency medical services) from January 1, 2010 or from the start of your depmiment's computerized database (whichever is earlier) to the present (the day your department processes this request), for the following address: ... Commonwealth Ave., Boston, MA. ..." Mr. Sherlock indicated that a CAD spreadsheet or printout would satisfy his request if it contains "date and time of each incident, type of incident, and outcome and notes." Mr. Sherlock also requested." ... an explanation for any codes or abbreviations used on the list of all calls for service[,]" and mentions that he does not prefer personal information. After being denied the above request, on June 27, 2019, Mr. Sherlock amended his original public records request and requested" ... a list by date only from 1/1/2010 to the present on EMS calls to the address in question ... [.] If not, ... a number of how many EMS calls have taken place at the address in question ... each year from 2010 to the present[.]" Previous Appeal The requested records were the subject of a prior appeal. See SPR 19/1974 Determination of the Supervisor of Records (October 11, 2019). In my October 11th determination, I ordered the Commission to provide a supplemental response to Mr. Sherlock. The Commission provided this response on October 15, 2019, providing additional information regarding the records it possesses. Unsatisfied with the Commission's response, Mr. Sherlock petitioned this office and this appeal, SPRl 9/2260, 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

Batool Raza, Esq. SPR19/2260 Page 2 November 22, 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. The Commission's Responses I In its July 30, 2019 response, the Commission indicates that it is " ... unable to provide any information [it] records during its provision and care of patients because of the sensitive nature of the information." In its October 7, 2019 response, the Commission reiterates that as a covered entity under BIPAA, " ... information it (and Boston EMS) collects is considered protected health information ('PHI') and is subject to the protections afforded under HIPAA. Therefore, redacting patient names is not sufficient de-identification, per HIP AA, to release this information." . The Commission also states that the requested information is exempt under Exemption (c), because" ... it constitutes 'medical files or information' and 'materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy.' . . ." · Current Appeal In its responses to Mr. Sherlock, the Commission has claimed that HIP AA and its regulations, as they operate through Exemption (a), as well as Exemption (c) of the Public Records Law apply to exempt to withhold the responsive records from disclosure. 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).

Batool Raza, Esq. SPR19/2260 Page 3 November 22, 2019 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. Exemption (c) Exemption (c) of the Public Records Law 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 ofE xemption (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 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 will be of a sufficiently personal nature to warrant exemption. Globe Newspaper Co., 338 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 Med. Examiner, 404 Mass. 132, 135 (1987). Under the first clause of Exemption ( c ), the Commission states that "the requested records are medical files as defined by Massachusetts Courts and the Secretary of State Guide to Massachusetts Public Records law." In its October 15th response, the Commission provided

Batool Raza, Esq. SPR19/2260 Page 4 November 22, 2019 further explanation regarding the content of the CAD sheets: "[t]he CAD sheet is created to track EMS responses. This includes ... date, time added, time dispatched, time arrived time closed, call taker ID, event ID, caller name, caller phone number, caller location, location information, and event type." With respect to Patient Care Repo1is (PCRs), the Commission explains that these are "an electronic medical record to document the treatment EMS staff provides to the patient when it responds to calls. This contains several drop-down fields and narrative sections used to document patient care." The Commission further asserts that "there is a grave risk that the requested records, even redacted, would indirectly identify an individual. If, for example, the Commission were to redact the individuals' names, their medical condition, and the street number of their location, there is still enough pe1iinent information to identify the individual, including the precise location of the call and the date and time the call was made ...." Based on the Commission's responses, I find the Commission has met its burden to withhold responsive records under the first clause of Exemption (c). See Globe Newspaper Co., 388 Mass. at 438 (identifying information is considered not only from the viewpoint of the public, but also from the vantage point of those who are familiar with the individual). Consequently, I decline to opine upon the applicability of the specified provision of HIP AA as it operates through Exemption (a) of the Public Records Law. Request for Number of Calls With respect to Mr. Sherlock's June 27111 public records request, requesting'' ... a number of how many EMS calls have taken place at the address in question ... each year from 2010 to the present[,]" the Commission states that it "does not compile a list of calls to a specific address per day, week, month, or year .... " Please be advised, the duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § IO(a)(ii). Under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § IO(a); 32 Op. Atty Gen. 157, 165 (May 18, 1977). Accordingly, I find the Commission has met its burden in responding to this p01iion of the request. Conclusion Accordingly, I will consider this administrative appeal closed.

Batool Raza, Esq. SPR19/2260 Page 5 November 22, 2019 If Mr. Sherlock is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonweath. G. L. c. 66, § 1O (b) (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, Rebecca S. Murray Supervisor of Records cc: Kevin Sherlock