Matthew Rocheleau v. Boston Public Health Commission (SPR 20200072)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray S11pe1'visor ofR ecords January 24, 2020 SPR20/0072 Batool Raza, Esq. Assistant General Counsel Office of the General Counsel Boston Public Health Commission 1010 Massachusetts A venue Boston, MA 02118 Dear Attorney Raza: I have received the petition of Matthew Rocheleau of the Boston Globe appealing the response of the Boston Public Health Commission (Commission) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on December 27, 2019, Mr. Rocheleau requested copies of "[a]ny/all Boston Fire Department and Boston Emergency Medical Services reports and any/all logs of calls and responses for an incident that occurred roughly between 1 :30 p.m. and 2 p.m. on Monday Dec. 9, 2019 ... " Tile 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 documentaty 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 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, § lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. 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

Batool Raza,' Esq. SPR20/0072 Page 2 January 24, 2020 In its January 21, 2020 response the Commission had claimed that the Health Insurance Portability and Accountability Act (HIP AA) and its regulations, as they operate through Exemption (a), as well as Exemption (c) of the Public Records Law, apply to withhold the responsive records from disclosure. 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. Exemption (c) Exemption ( c) of the Public Records Law 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

Batool Raza, Esq. SPR20/0072 Page 3 January 24, 2020 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 persom1el 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 Comin. of Westport, 401 Mass. 306, 308 (1987); Globe Newspaper Co., 388 Mass. at 438. Generally, medical information will be ofa sufficiently personal nature to warrant exemption. Globe Newspaper Co., 338 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 Med. 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. 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 , 4 77 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 its Exemption (a) claim, the Commission asserts that because it is a covered entity under HIP AA, it is prohibited "from disclosing Protected Health Information ('PHI') without a valid patient authorization form or court order." The Commission indicates that "[u ]nder HIP AA, the definition of PHI means individually identifiable health information transmitted or maintained in any form or medium. See 45 CFR 160.103." The Commission states that "[i]ndividually identifiable health information includes demographic information that is created

Batool Raza, Esq. SPR20/0072 Page4 January 24, 2020 or received by a health care provider ... or for which there is a reasonable basis to believe the information can be used to identify the individual (emphasis added). Id." The Commission states that "PHI includes many common identifiers, including, but not limited to, an individual's name, address, bilih date, Social Security Number and medical record number when combined with health information." The Commission explains that "[b] ased on the current definition of PHI and the de identification standard, the time and date of the call, the reason for the call, and the nature of the call are all presumed by federal law to constitute information that can potentially be used to identify a patient and therefore are subject to protection." The Commission further explains that "[s]imilarly, incident numbers used by Boston EMS are not randomized numbers, but in fact use a combination of the date and time of the incident. U.S. Depaiiment of Health and Human Services regulations state that all elements of date are considered PHI. .. Therefore, these data fields are also protected from disclosure under federal regulation. 45 C.F.R. § 164.514(b)." Also, the Commission states "[t]he Safe Harbor method (per 45 CPR 164.514(b)(2)) requires the removal of specified identifiers of the individual and of the individual's relatives, household members, and employers, and is adequate only if the covered entity has no actual knowledge that the remaining information could be used to identify the individual. This level of de-identification effectively excludes all information currently recorded by Boston EMS in its system." Mr. Rocheleau asserts that "entities covered under HIP AA are not required to keep health information confidential when the records/information provided does not reveal the identity of the individual." Further, Mr. Rocheleau provides 18 specific identifiers that he notes can be redacted before records can be released. In camera inspection In order to facilitate a determination as to the applicability of the. Commission's claims under Exemptions (a) and (c) to withhold information from disclosure, the Commission must provide this office with un-redacted copies of the responsive records for in camera .inspection. See 950 C.M.R. 32.08(4). After I complete my review of the documents, I will return the record to your custody and issue an opinion on the public or exempt nature of the record. The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G.L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Massachusetts Comm'n Against Discrimination, 384 Mass. 198,206 (1981) ( administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian

Batool Raza, Esq. SPR20/0072 Page 5 January 24, 2020 of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would ce1iainly affect our credibility within the legal community. I understand a Public Records Division staff attorney contacted your office about this appeal but was unable to reach you prior to the issuance of this decision. Order Accordingly, the Commission is ordered to provide this office with un-redacted copies of the responsive records without delay. The Commission may provide this office with an explanation of its position regarding the applicability of Exemption (a) and Exemption ( c) to withhold the records in their entirety. Please be advised that, unlike the materials provided for in camera review, any such additional correspondence would be placed in the file for this appeal and would be subject to public disclosure as a public record. Sincerely, ~ I T ~ Supervisor of Records cc: Matthew Rocheleau