Susannah Sudborough v. Barnstable, Town of - Office of Town Clerk (SPR 20192267)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supen1isor ofR ecords November 21, 2019 SPR19/2267 AnnM. Quirk Town Clerk Town of Barnstable 367 Main Street Hyannis, MA 02601 Dear Ms. Quirk: I have received the petition of Susannah Sudborough of BU News Service appealing the response of the Town of Barnstable (Town) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on October 22, 2019, Ms. Sudborough requested: "copies of all records relating to people who were bit by animals who tested positive for rabies, including but not limited to, emails; correspondence; memorandum; reports; photos; video; audio records and transcripts; directives; requests; or any other responsive information. I request access to this information from January [1], 2011 to present. In paiiicular, I would like as many documents as possible surrounding the incident around January 2012 where [an identified man] died of rabies." Ms. Sudborough also requested a free waiver. However, she indicates that she is willing to pay some costs up to $50. On October 29, 2019, Thomas McKean, the Depaiiment Records Access Officer for the Town's Board of Health denied Ms. Sudborough's request in its entirety, stating, "I was advised by our [L]egal Department that medical records are exempt from disclosure, per the exemptions listed in the [P]ublic [R]ecords [Law] [G]uide (attached)." Ms. Sudborough was also provided with a link to a news article by the Cape Cod Times. As a result, Ms. Sudborough petitioned the Supervisor of Records (Supervisor), and this appeal was opened. In her petition Ms. Sudborough asse1is, "I believe they are required to send me redacted medical records if they have them. I am also guessing there are other records, such as a death certificate, they should be sending me." 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

Ann M. Quirk SPR19/2267 Page2 November 21, 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, § 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 ... "); 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). 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 Town's October 29, 2019 response The Town's October 29th response indicated that the records, in their entirety, are medical records and exempt from public disclosure. Exemption (c) Exemption (c) applies to: 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). 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 creates a categorical exemption for personnel 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

AnnM. Quirk SPR19/2267 Page 3 November 21, 2019 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). The Town did not meet its burden of specificity in claiming that all records in the Town's possession related to individuals who may have been bitten by rabid animals may be withheld as medical files or information in their entirety under Exemption ( c ). It is unclear why the Town cannot segregate medical information from the records in its possession that are responsive to Ms. Sudborough's request. The first clause of Exemption (c) will apply to withhold medical information if the medical information is of a personal nature and relates to or identifies a specifically named individual. Burden of specificity; duty to segregate Under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, § lO(b)(iv); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The Town did not meet its burden of demonstrating how the responsive records, in their entirety, are exempt from disclosure. See Reinstein v. Police Comm'r of Boston, 3 78 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). The Town must . produce any non-exempt, segregable portions of the public records. G. L. c. 66, § lO(a). In addition, the Town did not identify the records, categories of records or portions of records in its possession and that the Town intends to withhold from disclosure under Exemption (c). 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, § lO(b)(iv); 950 C.M.R. 32.06(3)(c)(4). Here, the Town withheld responsive records without identifying each of the records. Conclusion Accordingly, the Town is ordered to provide Ms. Sudborough with a response to the request, in a manner consistent with this order, the Public Records Law and its Regulations within 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, ~r~ Supervisor of Records cc: Susannah Sudborough