Matthew Rocheleau v. Boston Public Health Commission (SPR 20200600)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 10, 2020 SPR20/0600 Batool Raza, Esq. Assistant General Counsel Office of the General Counsel Boston Public Health Commission 1010 Massachusetts Avenue 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, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on March 10, 2020 Mr. Rocheleau requested 5 categories of records related to COVID-19. The Commission initially responded on March 24, 2020 by explaining it does not possess certain records and also denying access to records under Exemptions (a), (c), (d), and (f) of the Public Records Law. 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 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. 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. SPR20/0600 Page 2 April 10, 2020 Appeal In his appeal petition Mr. Rocheleau indicates that he objects to the Commission’s response to the following portions of his request: 1. Any/all text messages, and/or voicemails sent and/or received by each of the following individuals from Feb. 20, 2020 through present: Rita Nieves (Interim Executive Director) o Heather Gasper (Director of Intergovernmental Relations) o Stacey Kokaram (Director, Office of Public Health Preparedness) o Mea E. Allen (Associate Director, Education and Training) o Michael Colanti (Associate Director, Planning and Operations) o Amanda Wolfe (Emergency Preparedness Educator) o 2. Any/all emails sent and/or received since Dec. 29, 2019 by each of the following individuals: Rita Nieves (Interim Executive Director) o Heather Gasper (Director of Intergovernmental Relations) o Stacey Kokaram (Director, Office of Public Health Preparedness) o Mea E. Allen (Associate Director, Education and Training) o Michael Colanti (Associate Director, Planning and Operations) o Amanda Wolfe (Emergency Preparedness Educator) o Provided that the messages contain any of the following terms: Corona o Corornavirus o COVID-19 o COVID o Wuhan o Epidemic o Pandemnic o Outbreak o Quarantine o 3. Any/all emergency plans for dealing with a disease epidemic/pandemic. In its March 24th response the Commission explained “[p]lease note that Heather Gasper no longer works for the Commission, therefore the Commission has no responsive records to that request. Barring that, the Commission has responsive records to these requests which it cannot release per Massachusetts Public Records law exemptions (a), (c), (d), and (f), and the Federal Health Insurance Portability and Accountability Act of 1996 (‘HIPAA’).”

Batool Raza, Esq. SPR20/0600 Page 3 April 10, 2020 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. In the March 24th response you indicate “[t]he Commission has emails between Commission staff discussing potential or existing cases of COVID-19 in Massachusetts and the broader United States. These emails are absolutely exempt from disclosure because they contain PHI. Release of this information would compromise patient confidentiality in violation of HIPAA. Therefore, because of the particularly sensitive nature of the information recorded, the number of individuals infected or at risk for infection, and the amount of information about the epidemic already made available on the Internet and media, disclosure of any emails discussing these cases would almost certainly violate Federal law.” You also assert “[m]ore specifically, Massachusetts regulations regarding infectious diseases explicitly prohibit the disclosure of information received by local boards of health and health departments. 105 CMR 300.120. Information contained in communications regarding the current outbreak may also constitute violations of state privacy statutes at M.G.L. c. 66A and M.G.L. c. 214, § 1B.” Exemption (c) Exemption (c) of the Public Records Law permits the withholding of:

Batool Raza, Esq. SPR20/0600 Page 4 April 10, 2020 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, 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 of Exemption (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, 477 Mass. at 291. The

Batool Raza, Esq. SPR20/0600 Page 5 April 10, 2020 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. With respect to its Exemption (c) claim, the Commission asserts in its March 24th response that “[f]urthermore, under Massachusetts law, the requested documents are exempt from disclosure because such documents constitute ‘medical files or information’ and ‘materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy.’ M.G.L. c. 4, § 7(26)(c). Here, emails discussing existing or potential cases with COVID-19 contain ‘medical information,’ within the meaning of the statute.” 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 reports 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); -se-e -al-so- - E - nv - t - l. - P - ro - te - c - ti - o - n - A - g - en - c - y - v - . Mink, 410 U.S. 73, 89 (1973) (purely factual matters used in the development of government policy are subject to disclosure). The Commission asserts “[t]he information you requested relates to the Commission’s investigation of the spread of an ongoing epidemic, COVID-19, in Boston specifically, and policy determinations regarding the Commission’s response. Therefore, any emails among Commission staff regarding the Commission’s response to this active health crisis will be withheld pursuant to G. L. c. 4, § 7 (26)(d) in order to protect the integrity of the policies and emergency plans under development relating to this disease outbreak.” You also indicate “[i]t is well established law in Massachusetts that this exemption is intended to prevent release of materials that could taint the deliberative process if prematurely disclosed. Since the COVID-19 epidemic is ongoing, the Commission is actively engaged in promulgating policies, procedures, and plans for its management and control. Thus, any emails among Commission staff, or emergency plans are exempt from disclosure and will not be released.”

Batool Raza, Esq. SPR20/0600 Page 6 April 10, 2020 Exemption (f) 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 material 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 on-going 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, 371 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 v. Police Comm'r of Boston, 378 Mass. 281,290 n.18 (1979). 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. In its March 24th response you assert “[t]he Commission is also withholding any emails between Commission staff, and emergency plans regarding the disease pursuant to exemption (f) of the Massachusetts Public Records Law. Exemption (f) states that any ‘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.’ M.G.L. c. 4, § 7(26)(f). The exemption allows investigative officials to withhold materials that could compromise investigative efforts if disclosed.” You also contend that with respect to Exemption (f), “[t]he Commission staff involved in dealing with this active public health crisis discuss confidential information about citizens regarding their health and wellbeing. Additionally, a lot of citizens speak with Commission staff openly and freely because they understand their personal information will be protected and not released to the general public. Therefore, in order to maintain effective enforcement of public health regulation and processes, the Commission will not be releasing any correspondence per exemption (f).” Basis of the appeal; the Commission’s supplemental response In his appeal petition Mr. Rocheleau asserts, in part, “[p]reliminarily, in violation of G.L. c. 66 § 10(a), the Response does not explain whether the Department has any responsive text

Batool Raza, Esq. SPR20/0600 Page 7 April 10, 2020 messages or voicemails in its possession. I respectfully ask that the Supervisor order the Department to clarify whether it has any such records.” He addresses the Commission’s exemption claims and asks this office to order the Commission to “. . . (i) clarify whether it has within its possession responsive text messages or voicemails, (ii) provide further explanation as to why the cited exemptions should apply, and (iii) produce responsive records, in full or redacted form, where the Department has responsive records that include non-exempt information.” Subsequent to the opening of the appeal, the Commission submitted a supplemental response on April 3, 2020 that contains additional information regarding its position. You indicate that “[a]s a preliminary matter, the Commission confirms that it does have responsive records to Mr. Rocheleau’s request no. 1 which asks for ‘any and all text messages, and/or voicemails…’” With respect to the remaining records, the Commission asserts “[f]urthermore, the Commission clarifies that in its initial response all claimed exemptions (Massachusetts Public Records law exemptions (a), (c), (d), and (f), and HIPAA) apply to requests no. 1, 2, and 3. Therefore the claimed exemptions apply to all requests for text messages, voicemails, emails, and/or emergency plans contrary to Mr. Rocheleau’s understanding.” (emphasis in original). With respect to the ability to provide redacted records, the Commission contends, in part, “[i]t is the Commission’s position that given the particularly sensitive nature of the information, the amount of information, and misinformation, available about this pandemic on the Internet and news media, the Commission cannot risk releasing any records that could potentially lead to the identification of an individual or further contribute to the spread of misinformation.” (emphasis in original). You also note that “. . . the Commission released several emails and written correspondences to Mr. Rocheleau that it deemed to be unexempt. This information related to the Commission’s plan of managing the crisis as it works with its various partners across the city, including hospital, healthcare facilities, etc.” In light of the Commission’s April 3rd response that provides additional information addressing Mr. Rocheleau’s appeal, specifically with respect to the existence of additional records as well as the ability to provide redacted records, I will consider this appeal closed. Mr. Rocheleau may appeal the Commission’s April 3rd response within 90 days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Matthew Rocheleau