Tanner Stening v. Department of Public Health (SPR 20200215)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords February 20, 2020 SPR20/0215 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 (Depa11ment) to a request for public records. G. L. c. 66, § lOA; 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 rep011ing them to the department, and as such, am asking for the names of the hospitals, and the number of cases they have reported." Previous appeals This request was the subject of previous appeals. See SPR19/2279 Determination of the Supervisor of Records (November 25, 2019) and SPR20/0036 Determination of the Supervisor of Records (January 17, 2020). In my January 17th determination, I found the Depai1ment had 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. Accordingly, I ordered the Department to review the records, redact where necessary and 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 January 17th determination, the Department responded on February 3, 2020, providing the requested information and restating its Exemptions (a) and (c) claims to withhold records, to the extent they concern" ... individuals with suspected, probable, or confirmed EV ALI ...." Unsatisfied with the Depai1ment's response, Mr. Stening petitioned this office and this appeal, SPR20/0215, was opened as a result One Ashbmion 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 SPR20/0215 Page 2 February 20, 2020 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, § lOA(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, § 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. ff 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. · The Department's February 3rd response In its February 3, 2020 response, the Department indicates that although it has no duty to create a record, it" ... has elected to create the enclosed table of Number of EV ALI Intake Forms by Reporting Facility from September 11, 2019 to January 29, 2020. Please note that this table shows the number of intake forms received by the Department per hospital, where the information was available." The Department reiterates that" ... to the extent [Mr. Stening] [is] seeking records concerning individuals with suspected, probable, or confirmed EV ALI, [it] is prohibited from disclosing such information because this information constitutes personal data protected from disclosure pursuant to G.L. c. 66A, the Massachusetts Fair Information Practices Act ('FIPA'). If [the Department] disclosed such information, [it] may be liable for damages under G.L. c. 214, § 3B. See also 801 CMR 3.00 (regulating dissemination of personal data under FIPA)." The Department further asserts that" ... this information is exempt from disclosure pursuant to G.L. c. 4, §7(26)(c) as it is medical and private information, the disclosure of which may constitute an unwarranted invasion of personal privacy. This 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 October 4, 2019 original request, Mr. Stening requested" ... information regarding the number of potential cases of 'vaping-related lung illness or injury' per hospital or health center ... " Mr. Stening further specified that he was seeking" ... the distribution of these reported cases across various hospitals reporting them to the depaiiment, and as such, am asking for the names of the hospitals, and the number of cases they have reported." In the Department's

Helen Rush-Lloyd SPR20/0215 Page 3 February 20, 2020 February 3rd response, it provided a list of the "Rep01iing Facility" and the "Number of EV ALI Intake Forms." Consequently, where it appears Mr. Stening has received the information he originally requested, it is unclear what the basis of his appeal is. Mr. Stening may clarify this matter and his objections to the Department's response. Sincerely, Rebecca S. Murray Supervisor of Records cc: Tanner Stening