Tanner Stening v. Department of Public Health (SPR 20200036)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 17, 2020 SPR20/0036 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 Noah Bombard on behalf of Tanner Stening, both of MassLive, appealing the response of the Department of Public Health (Department/DPH) to a request for public records. G. L. c. 66, § 1O A; 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." Previous appeal This request was the subject of a previous appeal. SPRl 9/2279 Determination of the Supervisor of Records (November 25, 2019). In my November 25th determination, I found that the Department had not met its burden to withhold the requested information under Exemptions (a), (c), (d), and (f) of the Public Records Law. Accordingly, I ordered the Depa11ment to provide Mr. Stening with a response to the request, provided in a manner consistent with the order, the Public Records Law and its Regulations. Following the November 25th determination, the Department responded on December 10, 2019, providing additional information regarding its exemption claims. Unsatisfied with the Department's response, Mr. Bombard petitioned this office and this appeal, SPR20/0036, was opened as a result. Tlte 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, § 1O A(d); 950 C.M.R. 32.03(4). "Public 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 SPR20/0036 Page 2 January 17, 2020 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 pmiion 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, § 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 Department's December 1ot11 response In its December 10, 2019 response, aside from stating that the Department has no duty to create a record in response to a public records request, the Department asserts that to the extent that Mr. Stening is requesting intake forms, or reports made by providers to the Department pursuant to the Commissioner's September 11th declaration, these records are exempt from disclosure under Exemptions (a), (c), (d), and (f) of the Public RecordsLaw. Exemption (a ) Exemption (a), known as the statutory exemption, permits the withholding ofrecords 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

Helen Rush-Lloyd SPR20/0036 Page 3 January 17, 2020 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 states that the intake forms" ... contain information including: patient name; street address; telephone number; date of birth; sex at birth; disease symptoms; use ofproducts including vaping products, cigarettes, and marijuana; results of radiographic and CT scans; evidence of infection including sputum cultures, 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 (FIP A), 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 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, 432-34 (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 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 SPR20/0036 Page 4 January 17, 2020 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 the information is exempt from disclosure, because" ... it is medical or private information, the disclosure ofwhich 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." In his appeal petition, Mr. Bombard states that the Department" ... [c]ite[s] records (intake forms) that the department has that would contain the information we are seeking .... Although we recognize the records contain personal information, we believe these records could easily be redacted to eliminate any identification to individuals. We are not seeking names, dates of birth or other identifying information." Mr. Bombard further states that "[the Department] also says it 'has received reports from hospitals, urgent care centers and individual healthcare providers.' These also appear to be records that would contain the information we are seeking. The [Depaiiment] does not need to create these records as they already have them." Based on the above, it is unclear how provision of the records constitute creation of a record. The Department is advised that 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 ofrecords at the time of the request. See G. L. c. 66, § lO(a)(ii). Further, where Mr. Stening does not request personal data, it is uncertain howExemptions (a) and/or (c) apply to withhold the requested information. See SPRl 9/2279.

Helen Rush-Lloyd SPR20/0036 Page 5 January 17 , 2020 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). 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 ofHumanServs., 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 Depmiment 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 Depmiment] has taken ce1iain actions such as requiring repo1iing 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." In its response, the Depmiment states that it possesses ". . . rep01is made by providers to the Depmiment pursuant to the Commissioner of Public Health's September 11, 2019 declaration ... " The Department also states that " ... reports of patients suspected of having EV ALI have been received from hospitals, urgent care centers and individual healthcare providers. These reports have come from practitioners and facilities across the state with no observed, statically significant, geographic patterns." Based on the foregoing, I find the Department has not established how the records at issue are "inter-agency or intra-agency memoranda or letters" as required by Exemption (d). In pmiicular, the Depmiment has not established that the responsive records were only sent between governmental entities or consultants. See DOI v. Klamath Water Users Protective Ass'n, 532 U.S. 1 4 (2001) (indicating that a requirement for Freedom of 1 Information Act (FOIA) exemption 5 to apply is "its source must be a Government agency"); Cty. of Madison v. United States Dep't of Justice, 641 F.2d 1036, 1040 (1st Cir. 1981) (finding that documents from a private party are not "intra-agency" under FOIA exemption 5). SPR95/336 Determinations of the Supervisor of Records (August 14, 1995; August 31, 1995) (finding that Exemption (d ) does not protect materials submitted to an agency by third pmiies

Helen Rush-Lloyd SPR20/0036 Page6 January 17 , 2020 and only applies to governmental agencies or consultants). It is additionally unce1iain how the names of hospitals and the number of reported cases constitute policy positions being developed by the Department, nor is it clear how disclosure 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); SPR19/2279. 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)(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 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 Depaiiment 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

Helen Rush-Lloyd SPR20/0036 Page 7 January 17, 2020 effective law enforcement that such disclosure would not be in the public interest" as required under Exemption (f). Despite the Department's claims, I find it has not met its burden of specificity to withhold the names of hospitals and the number of reported cases under Exemptions (a), (c), (d), and (f) of the Public Records Law. Order Accordingly, the Depaiiment is ordered to review the records, redact where necessary and 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. Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Tanner Stening Noah Bombard