Stephanie Ebbert v. Department of Early Education and Care (SPR 20201136)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 23, 2020 SPR20/1136 Denise J. Karlin, Esq. Department of Early Education and Care 51 Sleeper Street Boston, MA 02210 Dear Attorney Karlin: I have received the petition of Stephanie Ebbert of the Boston Globe, appealing the response of the Department of Early Education and Care (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Ms. Ebbert requested: · “The names and locations of any and all Exempt Emergency Child Care Programs that have reported cases of coronavirus. · The number of children with confirmed exposures at each location. · The number of staff with confirmed exposures at each location. · The duration of time that each facility or an individual classroom in that facility was closed as a result.” The Department responded on July 8, 2020, providing responsive records, and withholding the names and locations of programs that have reported positive cases, and the names of programs that have closed. Unsatisfied with this response, Ms. Ebbert petitioned this office, and this appeal, SPR20/1136, 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 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

Denise Karlin, Esq. SPR20/1136 Page 2 July 23, 2020 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. Current Appeal In its July 8th response, the Department claims the first and second clauses of Exemption (c) to withhold portions of the responsive records from disclosure. 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 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

Denise Karlin, Esq. SPR20/1136 Page 3 July 23, 2020 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). Names and Locations of Programs Reporting Positive Cases The Department indicates that it has “not included the names of the programs or the locations of the programs since that information falls under the privacy exemption of the Public Records Law.” In a supplemental response on July 21, 2020, the Department argues that “the release of the names or locations of the specific programs that experienced positive COVID-19 cases would likely lead to disclosure of the identities of the individuals who had tested positive for COVID-19.” In its July 21st response, the Department states that “although EEC is not directly releasing the names of the specific children or staff members, in many cases it is easy to infer who was attending or working at these programs.” The Department explains that “[m]any EEC programs are small family child programs run by a single educator serving six or fewer children in such programs, and, at times during the height of the child care shutdown, only one child would be attending on any given day,” and that “[e]ven in group child care settings, programs, with very few exceptions, were limited to a maximum of twenty children in two classrooms with most programs having ten or fewer children attending.” The Department asserts that “[b]y releasing the information only by Region, EEC is protecting the privacy of children, families, and educators while giving the Requestor a clear idea of the area in which the positive COVID- 19 outcomes were located.” Despite the Department’s responses, it is unclear how disclosure of the names and locations of the facilities will allow for the identification of the medical information of specific individuals. The privacy protections contained in Exemption (c) apply to “specifically-named individual[s]”. See G. L. c. 4, § 7(26)(c). The Department must provide further explanation regarding why it believes disclosure of the requested location names would permit identification of specific individuals. Names of Closed Programs The Department also withheld the names of programs that have permanently or temporarily closed, citing the privacy clause of Exemption (c). It is unclear how the closure of a business constitutes an “intimate detail of a highly personal nature” that may be protected by the privacy clause of Exemption (c). The Department’s response indicates that it does not receive information regarding why programs have closed, and states that “[o]ther reasons for temporary or permanent closures could include but are not limited to issues with the physical facility, low enrollment, holidays, or vacation.” Therefore, it is unclear how disclosure of the names of closed facilities could indirectly allow for disclosure of any protected information.

Denise Karlin, Esq. SPR20/1136 Page 4 July 23, 2020 Conclusion Accordingly, the Department is ordered to provide Ms. Ebbert with a response provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten business days. 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: Stephanie Ebbert, Boston Globe