Wayne Willis v. Department of Developmental Services (SPR 20200572)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 6, 2020 SPR20/0572 James Bergeron, Esq. Assistant General Counsel Department of Developmental Services 500 Harrison Avenue Boston, MA 02118 Dear Attorney Bergeron: I have received the petition of Wayne Willis appealing the response of the Department of Developmental Services (Department/DDS) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on November 25, 2019, Mr. Willis requested “. . . all email, to and from, anyone in the Harrison Avenue office, and Metro-North Area office, and the Hogan Regional Office of the Department of Developmental Services, that contains [certain search terms].” The Department provided a response on March 13, 2020, including certain responsive records. The Department withheld and/or redacted portions of the records pursuant to Exemptions (a), (c), and (f) of the Public Records Law, as well as the attorney-client privilege. G. L. c. 4, § 7(26)(a), (c), (f). Unsatisfied with the Department’s response, Mr. Willis petitioned this office and this appeal, SPR20/0572, was opened as a result. Purpose of request; identity of requestor Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Mr. Willis’ purpose in making the request has no bearing on the public status of any existing responsive records. 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, § 10A(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

James Bergeron, Esq. SPR20/0572 Page 2 April 6, 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, § 10(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, § 10(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 March 13th response In its March 13, 2020 response, the Department states that upon receipt of the request, it initiated a search for responsive records which resulted in a large number of false positive hits. As such, the Department indicates that it was necessary to modify the search terms provided in order to ensure that the generated emails were responsive to Mr. Willis’ request. The Department states that it withheld two emails that contained an identified individual’s name in a data report spreadsheet among the names of hundreds of other Department clients enrolled in the Department’s self-direction program. With respect to other responsive records, the Department states that considering the nature of the search terms used and the nature of services it provides to individuals with intellectual and developmental disability, it reviewed the records to withhold or redact confidential and privileged information under the following exemptions. 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

James Bergeron, Esq. SPR20/0572 Page 3 April 6, 2020 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. DDS client information Under Exemption (a), the Department indicates that it redacted identifying DDS client information that was contained in the emails that were generated. The Department explains that it is “. . . prohibited from disclosing individually identifying medical information of individuals receiving services from DDS because this information constitutes protected health information protected from disclosure pursuant to the Health Insurance Portability and Accountability Act (‘HIPAA’) Privacy Rule, 42 U.S.C. 1320d, et seq., and its implementing regulations, 45 CFR Parts 160 and 164; and DDS’ statute and regulations, M.G.L. c. 123B, § 17 and 115 CMR 4.00 et seq.” The Department explains that it “. . . is further prohibited from disclosing such information because it constitutes ‘personal data’ of a ‘data subject’ protected from disclosure pursuant to FIPA, M.G.L. c. 66A, § 2(c).” Based on the Department’s response, it appears the identifying client information that was redacted from the responsive records under the above stated statutes and regulations pertain to medical information. However, the Department also states that “[a] number of emails contained individually identifying information of DDS clients . . . which was redacted.” Consequently, I find the Department must clarify whether other types of information, other than medical information, was redacted from the responsive records pursuant to the above referenced statutes and regulations and explain how they apply to withhold such information from disclosure. Complainant identity Additionally, the Department indicates that it redacted the identities of complainants also under Exemption (a). The Department states that “[r]ecords or information identifying ‘reporters,’ or individuals who filed complaints with the Disabled Persons Protection Commission (‘DPPC’), are subject to the statutory exemption and therefore were redacted or withheld from the [records].” The Department asserts that this information is protected from disclosure pursuant to DPPC and DDS regulations 118 C.M.R. 9.03(1)(a) and 115 C.M.R. 9.19(1)(b)(3). The Department also cites Champa. The regulations, 118 C.M.R. 9.03(1)(a) and 115 C.M.R. 9.19(1)(b)(3), provide in pertinent parts: (1) Limitation on Release of Information. For the purposes of dissemination, the

James Bergeron, Esq. SPR20/0572 Page 4 April 6, 2020 records of the Commission shall not be considered “public records” and any release of said records shall be pursuant to the provisions of M.G.L c. 4, § 7, cl. 26, c. 66, c. 66A, and 118 CMR 9.00. The following information shall be confidential and shall not be disclosed or otherwise made available to any person except duly authorized staff of the Commission and the duly authorized staff of an agency within the Executive Office of Health and Human Services to which the Commission has referred a report of abuse for investigation or for the provision of protective services: (a) all personal data contained within the initial report of abuse, including but not limited to, personally identifying information of the person with a disability who is the alleged victim of abuse, of the alleged abuser, of the person who made the report of abuse to the Commission, and of any other third party. 118 C.M.R. 9.03(1)(a). Records, Forms and Notices The identity of a complainant shall not be disclosed by any provider with knowledge of such identity, or by the Department, except to representatives of investigating state agencies (including the Department), the district attorney’s office, or other law enforcement agencies as necessary for investigation, review, and monitoring of the actions taken in response to the complaint. 115 C.M.R. 9.19(1)(b)(3). Where the above regulations require that the personal data of persons who report an abuse to the Department shall not be considered a public record, I find the Department has met its burden to withhold the identities of complainants and/or reporters from disclosure. Investigatory data and materials The Department indicates that it withheld or redacted investigatory data or materials from the responsive records. The Department explains that these portions were redacted, because “. . . they pertained to pending or ongoing investigations protected from disclosure by FIPA. See M.G.L. c. 66A, § 2(i).” The Department further states that “[d]ocuments or other investigative materials protected from disclosure by DPPC regulations, as well as records containing ‘investigatory materials’ which would potentially disclose confidential investigatory procedures, or could prejudice future investigatory efforts were also withheld from the enclosed production. See 118 CMR 9.03(1)(b); M.G.L. c. 66A, § 2(i); and M.G.L. c. 4, § 7, ¶ 26(f) (exemption for ‘investigatory materials’). See also Bougas v. Chief of Police of Lexington, 371 Mass. 59, 62 (1976).”

James Bergeron, Esq. SPR20/0572 Page 5 April 6, 2020 The regulation, 118 C.M.R. 9.03(1)(b), provides in pertinent part: (1) Limitation on Release of Information. For the purposes of dissemination, the records of the Commission shall not be considered “public records” and any release of said records shall be pursuant to the provisions of M.G.L c. 4, § 7, cl. 26, c. 66, c. 66A, and 118 CMR 9.00. The following information shall be confidential and shall not be disclosed or otherwise made available to any person except duly authorized staff of the Commission and the duly authorized staff of an agency within the Executive Office of Health and Human Services to which the Commission has referred a report of abuse for investigation or for the provision of protective services: . . . (b) any and all notes, papers, documents or other investigative materials, including but not limited to interview summaries, collected or compiled by personnel duly authorized by the Commission during the course of an investigation. 118 C.M.R. 9.03(1)(b). Where the above regulation requires that investigative materials collected or compiled by authorized personnel during the course of investigation shall not be public records, I find the Department has met its burden to redact such information from the responsive records under 118 C.M.R. 9.03(1)(b), as it operates through Exemption (a). As such, I decline to opine on the Department’s Exemption (f) claim supporting non-disclosure of the redacted information. 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 of Exemption (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 of Exemption (c) also creates a categorical exemption for medical information that relates to an identifiable individual and is of a “personal nature.” Globe Newspaper Co., 388 Mass. at 434. Medical information that is of a personal nature and relates to a specifically named individual is exempt from disclosure. Brogan, 401 Mass. at 308; Globe Newspaper Co., 388 Mass. at 438. Generally, medical information is sufficiently personal to warrant exemption.

James Bergeron, Esq. SPR20/0572 Page 6 April 6, 2020 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). Under Exemption (c), the Department indicates that it redacted portions of the responsive records that contained identifying medical information of individuals receiving services from the Department. To the extent that the records contain medical information pertaining to an identifiable individual, I find the Department may permissibly withhold such information from disclosure. Common law attorney-client privilege A records custodian claiming the attorney-client privilege under the Public Records Law has the burden of not only proving the existence of an attorney-client relationship, but also (1) that the communications were received from a client during the course of the client’s search for legal advice from the attorney in his or her capacity as such; (2) that the communications were made in confidence; and (3) that the privilege as to these communications has not been waived. See Suffolk Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444, 450 n.9 (2007); see also Hanover Ins. Co. v. Rapo & Jepsen Ins. Servs., 449 Mass. 609, 619 (2007) (stating that the party seeking the attorney-client privilege has the burden to show the privilege applies). Records custodians seeking to invoke the common law attorney-client privilege “are required to produce detailed indices to support their claims of privilege.” Suffolk, 449 Mass. at 460. Pursuant to the Public Records Law, in assessing whether a records custodian has properly withheld records based on the claim of attorney-client privilege the Supervisor of Records “. . . shall require, as part of the decision making process, that the agency or municipality provide a detailed description of the record, including the names of the author and recipients, the date, the substance of such record, and the grounds upon which the attorney-client privilege is being claimed.” G. L. c. 66, § 10A(a). Under the attorney-client privilege claim, the Department indicates that it withheld or redacted certain records that contained “. . . communications between DDS staff and the DDS Legal Office for the purposes of seeking or providing legal advice.” The Department cites Suffolk and DaRosa to support its position. Although, the Department states that portions of the records are privileged, because they are “. . . communications between DDS staff and the DDS Legal Office for the purposes of seeking or providing legal advice,” I find the Department must confirm whether the communications were made in confidence and the privilege to these records has not been waived. Further, in accordance with G. L c. 66, § 10A(a), the Department must provide “a detailed description of the record[s], including the names of the author and recipients, the date, the substance of such record, and the grounds upon which the attorney-client privilege is being claimed” as required by G. L. c. 66, § 10A(a).

James Bergeron, Esq. SPR20/0572 Page 7 April 6, 2020 Conclusion Accordingly, the Department is ordered to provide Mr. Willis with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations as soon as practicable. 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: Wayne Willis