Tanner Stening v. Department of Public Health (SPR 20192279)

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

Rebecca S. Murray Supervisor of Records

November 25, 2019 SPR19/2279

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 Tanner Stening of MassLive appealing the response of the Department of Public Health (Department/DPH) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on October 4, 2019, Mr. Stening requested *. “

- information regarding the number of potential cases of ‘vaping-related lung illness or injury’ per hospital or health center; provided to the [Department] as [] required by the September 11 state mandate, to date across Massachusetts, in any suitable digital format.” Mr. Stening specifies that he seeks “, . . the distribution of these reported cases across various hospitals reporting them to the department, and as such, am asking for the names of the hospitals, and the number of cases they have reported.” The Department responded on October 21, 2019, indicating that it is not required to create a record and claiming Exemptions (a), (c), (A), and (f) of the Public Records Law to deny access to responsive records. G. L. c. 4, § 7(26)(a), (c), (d), (f). Unsatisfied with the Department’s response, Mr. Stening petitioned this office and this appeal, SPR19/2279, 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, § 10A(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, § 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

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

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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 21" response

In its October 21, 2019 response, the Department states that “[t]he information .. . does not exist as a single record or segregable portion of a larger record within the custody and control of DPH. An agency is not required to create'a new record in order to respond to a public record request. G. L. c. 66, § 6A(d).” The Department also claimed Exemptions (a), (c), (d), and (f) to withhold responsive records.

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.

Under Exemption (a), the Department claims that the information is withheld under this exemption because, “it is exempt by statute or necessary implication thereof. Specifically, such material is exempt from disclosure under [Exemption (c)], and is personal data protected from disclosure pursuant to M.G.L. c. 66A, the Massachusetts Fair Information Practices Act.”

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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. 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, FIPA may also operate to restrict disclosure. Based on the

Department’s response, it is unclear how the names of hospitals or health centers and the number of reports constitute personal data.

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 unwatranted 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 - 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).

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

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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 states that “[t]o the extent [Mr. Stening] is seeking records concerning individuals with possible vaping-related lung illness, such records are exempt from disclosure pursuant to [Exemption (c)] as they contain medical information, or other private information the disclosure of which may constitute an unwarranted invasion of personal privacy.” The Department posits that the “. . . records contain information that is of a highly personal nature and contain specific details, which may identify individuals. The individuals’ privacy interests outweigh the public interest in disclosure.”

Based on the Department’s response, it is unclear how the names of hospitals and the number of reported cases, constitute medical information that can be withheld under the first clause of Exemption (c). The Department further states that the “. . . records contain information that is of a highly personal nature and contain specific details, which may identify individuals. The individuals’ privacy interests outweigh the public interest in disclosure.” Despite the Department’s claims, it remains unclear how the names of hospitals and the number of reported cases constitute intimate details of a highly personal nature or how disclosure would result in personal embarrassment to an individual of normal sensibilities. The Department did not also address whether the information is available from other sources. It is additionally uncertain how disclosure of this information would lead to the identification of individuals,

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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. Lc. 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 states “. . . to the extent that [Mr. Stening is] seeking information relating to DPH’s ongoing investigation of unexplained vaping associated pulmonary disease in Massachusetts, such records are exempt from disclosure . . . in order to protect the integrity of policies under development relating to this outbreak.”

The Department’s response does not explain with specificity what policy positions are being developed, or how the names of hospitals and the number of reported cases are part of the policy deliberations, It is also not certain from the Department’s response how disclosure of the names of hospitals and the number of reported cases would taint the deliberative process. 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). .

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. Lc. 4, § 7(26)(£).

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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 states that “[t]he disclosure of this information could compromise future investigative efforts and, therefore, it is not in the public interest to disclose this information. Moreover, exemption (f) allows investigative officials to provide 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 information “. . . could compromise future investigative efforts . . .[,]” I find the Department did not demonstrate how disclosure of the requested information, “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 of the names of hospitals and the number of reported cases, would compromise or negatively impact its future investigative efforts.

Creation of a record

In the Department’s response, it also indicated that it is not required to create a record in response to the request, because the requested information “. . . does not exist as a single record or segregable portion of a larger record within the custody and control of DPH.”

A Records Access Officer shall not be required to create a new public record in order to comply with a request, provided that furnishing a segregable portion of a public record shall not be deemed to be creation of a new record. See G. L. c. 66, § 6A(d). Based on the Department’s response, it is unclear how provision of the requested information constitutes creation of a record, 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, § 10(a)(ii); see also 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).

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Conclusion

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

lence

Clecca S. Murray d

Supervisor of Records

cc: Tanner Stening