Laura H. Ortiz v. Lowell, City of - Law Department (SPR 20200285)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray S11pe111isor ofR ecords February 28, 2020 SPR20/0285 John R. Hucksam Jr., Esq. City of Lowell - Law Department 3 7 5 Merrimack Street 3rd Floor Lowell, MA O1 852 Dear Attorney Hucksam: I have received the petition of Laura Ortiz appealing the response of the City of Lowell (City) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on two separate occasions, June 1, 2019 and October 2, 2019, Ms. Ortiz requested records related to the EOY report for the 2018-2019 school year and Building Staff Profiles with information regarding school nurses for each Lowell Public School District's school. Previous Appeals This request is the subject of two (2) previous appeals. See SPR20/0155 Determination of the Supervisor of Records (February 11, 2020). See SPR19/2133 Determination of the Supervisor of Records (October 31, 2019). As a result of my February 11, 2020 Determination, the City provided a response to Ms. Ortiz's request on February 11th. Further, the City provided a supplemental response on February 12111 • In its January 27111 response, the City provided a in which "the City has searched for and identified all documents in its custody ... a copy of the responsive document is attached." Ms. Ortiz claims the attached document is "an entirely different document." Unsatisfied with the January 27111 response and the supplemental response provided by the City on February 12111, Ms. Ortiz petitioned this office and this appeal, SPR20/0285, was opened as a result. In its February 11111 response, the City explained to Ms. Ortiz that the "Essential Schools Health Services MA ESHS you have been provided ... is the End of Year Report for school year 2018/19." In addition, the City provided a supplemental response on February 12111 stating "attached is a copy of an excel spreadsheet. . .is that you were seeking when you requested a copy of the EOY Report for the 2018-2019 school year. This copy has been revised to eliminate references to individual schools in order to honor HIP AA privacy requirements." 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

John R. Hucksam, Jr., Esq. SPR20/0285 Page 2 February 28, 2020 Current Appeal Ms. Ortiz claims on February 12th that she "never requested this record as a sideways viewing pdf. .. have the City of Lowell provide a readable, upright view in excel copy." She states the provided record is "a copy of an actual printed photo copy from the excel spreadsheet created file ... and is not saved from the excel file as a print to pdf." A records access officer shall, to the extent feasible, provide public records to a requestor in electronic format unless the record is not available in electronic form or the requestor does not have the ability to receive or access the records in electronic format and if feasible, in the requesters preferred format. In the absence of a preferred fo1mat, the records shall be provided in a searchable machine-readable form. See 950 C.M.R. 32.04(5)(d). 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, § 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, § 1O (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 p01iion of the responsive record. The City's February 121 Response " In its February 12th response, with respect to the EOY Report for the 2018-2019 school year, the City 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 records from disclosure. 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

Jolm R. Hucksam, Jr., Esq. SPR20/0285 Page 3 February 28, 2020 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 Westport, 401 Mass. 306,308 (1987); Globe Newspaper Co., 388 Mass. at 438. Generally, medical information will be of a 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 inf01mation 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.

John R. Hucksam, Jr., Esq. SPR20/0285 Page 4 February 28, 2020 Although Ms. Ortiz claims in an email dated February 13th that the City had already "found a way to protect HIP AA and remove any identifying sensitive medical information," the City states on February 121 h that the provided copy of the record has been "revised to eliminate references to individual schools in order to honor HIP AA privacy requirements." Based on the City's response, it is unclear how the claimed exemption applies to the redactions in respect to the EOY Report. The City must clarify this matter. I understand that the City intends on providing a supplemental response to address these concerns. Conclusion Accordingly, the City is ordered to provide Ms. Ortiz with said response within ten (10) business days. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Ms. Ortiz may appeal the substantive nature of the City's response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Ms. Laura 01iiz