Steve Brown v. Department of Public Health (SPR 20200013)

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

Rebecca S. Murray Supervisor of Records

January 17, 2020 SPR20/0013

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 Steve Brown of WBUR appealing the response of the Department of Public Health (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on November 28, 2019, Mr. Brown requested “[flor the time period August 1, 2019 to present all completed CDC National Case Report Forms... submitted by [the Department] to the Centers for Disease Control pertaining to the CDC’s investigation of lung injury associated with E-cigarette use and vaping.” After this request was denied, on December 16, 2019, Mr. Brown amended his request and requested “[f]or the time period August 1, 2019 to present, all completed CDC National Case Report Forms submitted by [the Department] to the Centers for Disease Control pertaining to the CDC’s investigation of lung injury associated with E-cigarette use and vaping.” Acknowledging that the requested forms may contain information that could potentially identify individual patients, Mr. Brown mentions that he “. . . still would like copies of the forms with all personal or identifying information on the forms redacted.” The Department responded on December 31, 2019, 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). Unsatisfied with the Department’s response, Mr. Brown petitioned this office and this appeal, SPR20/0013, 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).

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 SPR20/0013 Page 2 January 17, 2020

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 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 December 31% response

In its December 31, 2019 response, the Department states that it“... has identified 105 records potentially responsive to [Mr. Brown’s] request.” However, the Department indicates that the records are being withheld pursuant to the following exemptions under the Public Records Law.

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.

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Under Exemption (a), the Department states that the case reports created as part of its ongoing investigation of unexplained vaping associated pulmonary disease in Massachusetts, “contain information including: case ID number; age; disease symptoms; information about chronic illness; use of products including vaping products, cigarettes, and marijuana; results of radiographic and CT scans; results of infectious disease testing; hospitalization information; and healthcare provider names and contact information.” As such, the Department states that pursuant to G. L. c. 66A, the Fair information Practices Act (FIPA), it “.., is prohibited from disclosing the information in these reports because this information constitutes personal data protected from disclosure .. .” The Department contends that it would be liable for damages under G. L. c. 214, § 3B and 801 C.M.R. 3.00 should the information be disclosed.

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). 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, 432-34 (1983). The first clause 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 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

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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 the information is exempt from disclosure, because “. . . it is medical or private information, the disclosure of which may constitute an unwarranted invasion of personal privacy.” The Department explains that the“... information is of a highly personal nature and contains specific details, which may identify individuals. The individuals’ privacy interests outweigh the public’s interest in disclosure.”

Although portions of the records may fall under Exemptions (a) and (c), it is unclear why the Department is withholding the responsive records in their entirety. Based on the Department’s response, it is uncertain how personal data and medical information cannot be redacted from the responsive records. 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, § 10(a). Consequently, I find the Department has not met its burden of explaining how segregating medical information and/or identifying information from the responsive records is not feasible so as to provide the balance of the reports to Mr. Brown.

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. L.c. 4, § 7(26)(d).

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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 indicates that the information regarding its ongoing investigation has been withheld under this exemption “. . . in order to protect the integrity of policies under development relating to this disease outbreak. For example [the Department] has taken certain actions such as requiring reporting of possible cases of unexplained e-cigarette or vaping-associated pulmonary disease [to the Department] pursuant to 105 CMR 300.150, 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.”

Based on the Department’s response, it is uncertain whether the reports contain factual information that can be segregated from the responsive records, as Exemption (d) does not apply to such information. Neither has the Department described how disclosing segregable portions of the responsive records would taint its deliberative process. The Department must clarify these issues.

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)(f).

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

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disclosure would not be in the public interest.” See Reinstein, 378 Mass, at 289-90,

Under Exemption (f), the Department asserts that “[t]he disclosure of this information could compromise future investigative efforts and, therefore, is not in the public interest.” The Department states that “. . . exemption (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.” The Department contends that “. . . the 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.”

Based on the Department’s response, it is unclear how identifying information of private citizens cannot be redacted from the records in order to preserve their anonymity. Further, the Department did not demonstrate how disclosure of the records or segregable portions thereof would compromise its future investigative efforts or “probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest” as required under Exemption (f),

Conclusion

Accordingly, the Department is ordered to review the records, redact where necessary, and provide Mr. Brown with responsive records, 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.

‘Blocen

Rebecca S. becca | Supervisor of Records

cc: Steve Brown