Noah Bombard v. Department of Public Health (SPR 20200436)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 16, 2020 SPR20/0436 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 (Department/DPH) to a request for public records. G. L. c. 66, § lOA; see 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 appeals This request was the subject of previous appeals .. See SPRl 9/2279 Determination of the Supervisor of Records (November 25, 2019); SPR20/0036 Determination of the Supervisor of Records (January 17, 2020); and SPR20/0215 Determination of the Supervisor of Records (February 20, 2020). In my February 20th determination, I indicated that the basis of Mr. Stenning's appeal was unclear as it appeared that he had received the information he originally requested. Accordingly, I directed Mr. Stening to clarify his objections to the Department's response. Subsequently, Mr. Noah Bombard, also of MassLive, responded providing that clarification and this appeal, SPR20/0436, 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, § lOA(d); 950 C.M.R. 32.03(4). "Public records" is broadly defined to include all documentary materials or data, regardless of physical 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 SPR20/0436 Page 2 March 16, 2020 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 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, § 1O (b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Current appeal In his February 28, 2020 clarification letter, Mr. Bombard states the following: The original request to the [Department] was for information pertaining to vaping-related illnesses per hospital in Massachusetts. In the DPH's original response it stated that such record did not exist as such, but that it did have intake forms from hospitals that indicated patients presenting with vaping-related illnesses. DPH stated that it could not provide these forms, however, as it would violate patient privacy laws. Masslive appealed this, believing that such personal data could be redacted from the forms. In its decision the Public Records Division stated that DPH should be able to redact the forms and ordered DPH to produce the records. After appeal, however, the DPH did create a table of some Massachusetts hospitals with the highest cases of vaping-related illnesses. The table, however, does not contain the same level of information about symptoms, products used and other factors that might be contained in intake forms. The table also does not provide numbers for any hospitals that had fewer than 5 cases. Although that level of information was admittedly not in the original request, the DPH itself had responded to our request pointing to these specific documents as the ones that would contain the information we were seeking. The DPH has already stated repeatedly that it would not be able to provide the intake forms and the Public Records Division has twice ordered that they could be provided if personal information was redacted. Our last appeal was for an in camera review so that the Public Records Division could confirm for itself whether the release of redacted intake forms would violate patient privacy. We could certainly begin a new request to DPH specifically for the intake forms. However, they have already responded twice that it will not provide such forms and the Public Records Division has twice ruled that it could if they were

Helen Rush-Lloyd SPR20/0436 Page 3 March 16, 2020 redacted. In light of that, we do not feel that this has been resolved and a new request specifically for the intake forms would create a repeat of this entire appeal process, leading us to the in-camera review we have requested. The Department's December 1 ott, response In its December 10, 2019 response, aside from stating that the Department had no duty to create a record in response to a public records request, the Department had asserted that to the extent that Mr. Bombard is requesting intake forms, or reports made by providers to the Department pursuant to the Commissioner's September 11th declaration, these records were exempt from disclosure under Exemptions (a), (c), (d), and (f) of the Public Records Law. 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 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 stated that the intake forms" ... contain information including: patient name; street address; telephone number; date of birth; sex at birth; disease symptoms; use of products 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 stated 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

Helen Rush-Lloyd SPR20/0436 Page 4 March 16, 2020 personal data protected from disclosure ... " The Department contended 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. 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.

Helen Rush-Lloyd SPR20/0436 Page 5 March 16, 2020 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 Exemption (c), the Department stated 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." 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 of Human Servs., 403 Mass. 230, 237 n.8 (1988). Factual rep01is 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 indicated 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 ce1iain 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."

Helen Rush-Lloyd SPR20/0436 Page 6 March 16, 2020 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, 3 71 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 asserted 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 contended 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." Although portions of the responsive records may fall within an exemption, it remains unclear why the records cannot be redacted to remove personal information or personal data from the responsive records. As a result, I find the Department did not meet its burden of demonstrating how the responsive records, in their entirety, are exempt from disclosure. 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, § lO(a).

Helen Rush-Lloyd SPR20/0436 Page 7 March 16, 2020 In camera inspection In order to facilitate a determination as to the applicability of the exemption claims made by the Department to withhold the intake forms, in their entirety, the Department must provide this office with un-redacted copies of the responsive records for in camera inspection without delay. See 950 C.M.R. 32.08(4). After I complete my review of the document, I will return the record to the Department's 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. Mass. 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 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 certainly affect our credibility within the legal community. Order Accordingly, the Department is ordered to provide this office with un-redacted copies of a representative sample of the intake forms for in camera inspection without delay. Sincerely, Rebecca S. Murray Supervisor of Records cc: Noah Bombard