Greg Hard v. Department of Public Health (SPR 20192380)

· The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 11, 2019 SPR19/2380 Helen Rush-Lloyd Records Access Officer Depaiiment 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 (Depa1iment/DPH) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Hard initially requested the following records: 1) The number of all confirmed vape related respiratory illnesses discovered by D PH 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 caiiridges 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 pi·oducts ...." 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 SPR19/2380 Page 2 December 11, 2019 Previous appeals This request was the subject of a previous appeals. See SPRl 9/2083 Determination of the Supervisor of Records (October 23, 2019); SPR19/2262 Determination of the Supervisor of Records (November 21, 2019). I understand that Mr. Hard made a related request on November 6, 2019 for "the case rep01is with minimally necessary redactions for confirmed and probable cases." The Department responded on November 25, 2019. Mr. Hard appealed and SPR19/2380 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, § IOA(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, § IO(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. Current appeal The Department initially responded to Mr. Hard's request on October 9, 2019 by 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). In my October 23rd determination I found that to the extent that records contain medical information related to an identifiable individual, the Department may withhold such portions from the responsive records. However, I also found it was unclear why the Department cannot provide segregable portions of responsive records. I encouraged Mr. Hard and the Department to continue to communicate to facilitate providing records more efficiently and affordably. In a previous response the Department noted"[o ]n November 6, 2019, [Mr. Hard] responded to the Department and indicated [he] would like to receive information additional to the online report. [He] requested 'the case reports with minimally necessary redactions for confirmed and probable cases.' The Department will respond to this new request under separate cover." The Depaiiment responded to the November 6th request on November 25th. In the November 25th response you indicate "[t]he Department interprets your request for 'case reports' to mean the records described by the Depaiiment as intake forms, or those rep01is made by

Helen Rush-Lloyd SPR19/2380 Page 3 December 11, 2019 providers to the Department pursuant to the Commissioner of Public Health's September 11, 2019 declaration mandating rep01iing of possible cases of unexplained vaping-associated pulmonary disease to the Department." You note that the Depaiiment "has identified 68 records potentially responsive to your request (the intake forms for the 21confirmed and 47 probable cases noted in the Weekly Update Report)." Exemption (c) The Depaiiment withheld the responsive records under Exemptions (a), (c), (d), and (f). You describe the type of information contained within the intake forms, and with respect to Exemption (c) you indicate "said intake forms are exempt from disclosure pursuant to G.L. c. 4, §7(26)(c) as they are medical, and other private information, the disclosure of which may constitute an unwarranted invasion of personal privacy." The Department also cites the Massachusetts Fair Information Practices Act in connection with its Exemption (c) claim. See G. L. c. 66A. 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 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 Westp01i, 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 ofE xemption (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.

Helen Rush-Lloyd SPR19/2380 Page 4 December 11, 2019 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. In his appeal petition Mr. Hard asserts, in paii, "the Depaiiment has not yet made it clear why the responsive records they have now admitted possessing cannot be redacted to exclude the specific identifying information in question, or how all of the information in their list of data (e.g., diagnosis is not by itself a personal identifier) would compromise privacy. Information that is relevant to this request should be made available as segregable p01iions of the records." I find that to the extent that records contain medical information related to an identifiable individual, the Department may withhold such portions from the responsive records. 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, § lO(a). Exemption (d) Exemption ( d) allows the withholding of: inter-agency or intra-agency memoranda or letters relating to policy positions being develo.ped by the agency; but this subclause shall not apply to reasonably completed factual studies or rep01is on which the development of such policy positions has been or may be based

Helen Rush-Lloyd SPR19/2380 Page 5 December 11, 2019 G. L. C. 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). With respect to Exemption (d), you indicate" ... information relating to DPH's ongoing investigation of unexplained vaping associated pulmonary disease in Massachusetts has been withheld pursuant to G. L. c. 4, § 7 (26)(d ) in order to protect the integrity of policies under development relating to this disease outbreak. For example, DPH has promulgated emergency regulations relating to this investigation, 105 CMR 801, and may, depending on the facts developed during the pendency of the investigation, develop policies to take other regulatory or administrative steps to reduce the incidence of this disease." I find that the Depa1iment's response does not explain how the responsive intake forms are "inter-agency or intra-agency memoranda or letters" as required by Exemption ( d). Further, the Department has not explained how their disclosure would taint the deliberative process. 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). Exemption (I) 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 eff01is in order to withhold requested records. Information reiating to an ongoing investigation may be withheld if disclosure could ale1i 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

Helen Rush-Lloyd SPR19/2380 Page 6 December 11, 2019 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. With respect to its Exemption (f) claim, the Department asserts "[t]he disclosure of this information could compromise future investigative efforts and, therefore, is not in the public interest. Moreover, [E]xemption (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 private citizens who volunteer as a witness as well as the Department's ability to conduct future investigations." You further note "[a]s described above, the intake forms contain highly personal medical and other information, including possible disclosure of potentially criminal activity. Private citizens must be assured of confidentiality so that they are willing to provide accurate information during a disease investigation." In his appeal petition Mr. Hard asserts that he believes that segregable p01iions of the responsive records may be provided. Although the Department may withhold identifying information of voluntary witnesses, I find the Department has not demonstrated 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). Paiiicularly, the Depatiment did not provide supporting information to demonstrate how all these records contain identifying information of voluntary witnesses, nor how disclosure would compromise or negatively impact its future investigative efforts. In light of the above, I find the Depaiiment must provide Mr. Hard with segregable portions of the records at issue in this appeal or provide additional information regarding how these records may be withheld in their entirety. See G. L. c. 66, § 1O (a). Conclusion Accordingly, the Department must provide a response to Mr. Hard 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, ~ Rebecca S. Murray Supervisor of Records cc: Greg Hard