Matthew Rocheleau v. Boston Public Health Commission (SPR 20200667)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 28, 2020 SPR20/0667 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. This appeal pertains to the following portions of the 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: o 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) 2. Any/all emails sent and/or received since Dec. 29, 2019 by each of the following individuals: o 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) 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. SPR20/0667 Page 2 April 28, 2020 Provided that the messages contain any of the following terms: o Corona o Coro[]navirus o COVID-19 o COVID o Wuhan o Epidemic o Pandem[]ic o Outbreak o Quarantine 3. Any/all emergency plans for dealing with a disease epidemic/pandemic. Previous appeal The requested records were the subject of a previous appeal. See SPR20/0600 Determination of the Supervisor of Records (April 10, 2020). I closed SPR20/0600 after I learned that the Commission provided a supplemental response dated April 3, 2020. The Commission had claimed Exemptions (a), (c), (d), and (f) of the Public Records Law to withhold portions of the responsive records. G. L. c. 4, § 7(26)(a), (c), (d), (f). Unsatisfied with the Commission’s response, Mr. Rocheleau petitioned this office and this appeal, SPR20/0667, 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, § 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. 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.

Batool Raza, Esq. SPR20/0667 Page 3 April 28, 2020 The Commission’s April 3rd response In its April 3, 2020 response, 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…’” The Commission also indicates that it released several emails and written correspondences to Mr. Rocheleau regarding its plan of managing the crisis as it works with its various partners across the city, including hospital, healthcare facilities, etc. With regards to the remaining records, the Commission asserts that they are exempt pursuant to Exemptions (a), (c), (d), and (f). The Commission indicates that it incorporates by reference its March 24th response. 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 the Commission indicates that “[it] 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.”

Batool Raza, Esq. SPR20/0667 Page 4 April 28, 2020 The Commission also asserts that “[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: 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).

Batool Raza, Esq. SPR20/0667 Page 5 April 28, 2020 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; - se - e -al-so- -D-o-e -v.- R-e-g-is-tr-a-r -of- M--o-to-r -V-e-hi-c-le-s, 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 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 “. . . 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); 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 Commission indicates in its April 3rd response that “[w]hile COVID-19 pandemic has swept the city, and the entire world, agency plans, recommendations, and orders change by the day, if not the hour. In such an environment any correspondence or plans that the Commission discusses or implements are not final and are subject to change with

Batool Raza, Esq. SPR20/0667 Page 6 April 28, 2020 every passing hour. Based on this, it is the Commission’s position that the deliberative process exemption applies to the Commission’s records at least until this pandemic has settled down and things are under control.” 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, the Commission asserts that “[it] 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.” The Commission also contends that “[its] 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).”

Batool Raza, Esq. SPR20/0667 Page 7 April 28, 2020 With respect to its ability to redact records, the Commission states that “Mr. Rocheleau is under the misconception that just because a record can be redacted, it must be released regardless of how inconsequential the redacted document would be. The Courts have ruled in Massachusetts that redaction is not mandatory where it would be both ‘burdensome and unnecessary’ to require a public agency to redact records simply to ‘extract the nuggets of nonconfidential information.’ Globe Newspaper Co. v. Chief Medical Examiner, 404 Mass. 132, FN 2 (1989).” The Commission explains that “[s]ince [it] is a public agency it would need to go through the procurement process of obtaining three (3) bids to hire a qualified company to conduct the necessary redaction of these records for it. Furthermore, the Commission will have to ensure that the awarded bidder adheres to HIPAA. The end result would be a costly and timely endeavor for essentially recorded silence.” In camera inspection In order to facilitate a determination as to the applicability of the exemption claims made by the Commission to withhold certain responsive records from disclosure, the Commission must provide this office with un-redacted copies of a representative sample 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 records, I will return the record to the Commission’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 Commission is ordered to provide this office with un-redacted copies of

Batool Raza, Esq. SPR20/0667 Page 8 April 28, 2020 a representative sample of the responsive records for in camera inspection as soon as practicable. Sincerely, Rebecca S. Murray Supervisor of Records cc: Matthew Rocheleau