Kay Lazar v. Department of Public Health (SPR 20201213)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 3, 2020 SPR20/1212; SPR20/1213 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 Kay Lazar of the Boston Globe appealing the response of the Department of Public Health (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on June 9, 2020, Ms. Lazar requested, “three death certificates – the ones the state is listing as probable COVID-19 deaths on March 10, March 13, and March 26 [and] … all records made or received by the Department evidencing those deaths and … all records relied upon by the Department in disclosing that those particular death had occurred. … include the following information with respect to each probable death: Name, DOD, Place of Death, City or Town where decedent resident, Cause of Death listed on death certificate, etc.” In an overlapping request on June 24, 2020, Ms. Lazar further requested: “1. …any guidelines -- including emails and memos -- or written policies the department is using in making these determinations of probable COVID-19 deaths going back to March 1, or earlier [and] email [DPH Communications] … regarding the state’s first two probably COVID-19 deaths on March 10 and March 13 2. …any and all records from the ‘various sources’ cited in the email that were used to determine the probable COVID-19 deaths March 10 and March 13.” Previous appeal This request was the subject of a previous appeal. See SPR20/1155 Determination of the Supervisor of Records (July 24, 2020). I closed SPR20/1155 by ordering the Department to provide Ms. Lazar with a written response to the request, provided in a manner consistent with the order, the Public Records Law and its Regulations. The Department provided a response on 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 SPR20/1212; SPR20/1213 Page 2 August 3, 2020 July 16, 2020. Unsatisfied with the response, Ms. Lazar appealed and SPR20/1212 and SPR20/1213 were 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) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based…”); 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). The Department’s July 16th response In its July 16th response, the Department provided information in response to the June 24th request as to the Determination of Probable Cases of COVID-19 and also stated the records requested are exempt from disclosure pursuant to G. L. c. 4, § 7(26)(a); G. L. c. 4, § 7(26)(c); and G. L. c. 66A, the Massachusetts Fair Information Practices Act (FIPA). 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, 154 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-546 (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

Helen Rush-Lloyd SPR20/1212; SPR20/1213 Page 3 August 3, 2020 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 its June 23rd response, which was reasserted in its July 16th response, the Department cited, G. L. c. 46, § 19C and Chapter 327 of the Acts of 2010. Further, in its July 16th response, the Department additionally cited 105 C.M.R. 300.120, which in pertinent part state as follows: “The state registrar shall use the seal of the department of public health for the purpose of authenticating copies of birth, marriage and death records, and copies of such records when certified by him and authenticated by said seal, shall be evidence like the originals.” G. L. c. 46, § 19C. “Records transmitted by the town clerk under section 12 and sections 17 to 17D, inclusive, shall be written in legible hand, typewritten, printed using an electronic format approved by the state registrar or printed using the centralized, automated database operated by the state registrar pursuant to section 32. All forms and formats shall have the prior approval of the state registrar and shall meet state standards for uniformity, security, materials, devices and preservation.” Section 3 of Chapter 327 of the Acts of 2010. “Confidentiality (A) All confidential personally identifying information, whether kept in an electronic system or paper format, including but not limited to, reports of disease, records of interviews, written or electronic reports, statements, notes, and memoranda, about any individual that is reported to or collected by the Department or local boards of health pursuant to 105 CMR 300.120, shall be protected by persons with knowledge of this information. Except when necessary for the Commonwealth’s or local jurisdiction's disease investigation, control, treatment and prevention purposes, or for studies and research authorized by the commissioner pursuant to M.G.L. c. 111, § 24A, the Department and local boards of health shall not disclose any personally identifying information without the individual’s written consent.” 105 C.M.R. 300.120. The Department denied Ms. Lazar's request without demonstrating how Exemption (a) of the Public Records Law supports the withholding of the responsive records in its entirety. It is unclear how these laws specifically, or by necessary implication, permit the Department to withhold the records requested by Ms. Lazar. The Department must clarify these issues. Exemption (c) Exemption (c) applies to:

Helen Rush-Lloyd SPR20/1212; SPR20/1213 Page 4 August 3, 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. Inc. (PETA) v. Department of Agricultural Resources, 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, 428 (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

Helen Rush-Lloyd SPR20/1212; SPR20/1213 Page 5 August 3, 2020 privacy, the private interest in preventing disclosure must yield. PETA, 477 Mass. at 292. 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. In denying Ms. Lazar’s request under Exemption (c), the Department states the records are exempt because patient level data constitutes medical information about a person which is categorically exempt from disclosure. The Department asserts that, “the patient level data in MAVEN [Massachusetts Virtual Epidemiologic Network] consist of personally identifying information gathered as part of the Department’s investigations as to the causes of disease which, pursuant to 105 CMR 300.120, the Department must keep confidential …” The Department further asserts that “personal information about specifically named individuals the disclosure of which may constitute an unwarranted invasion of personal privacy and the individuals’ privacy interest outweigh the public’s interest in disclosure.” The Department posits that “[it] is prohibited from disclosing [requested] information because this information constitutes personal data protected from disclosure pursuant to G.L. c. 66A, the Massachusetts Fair Information Practices Act, (FIPA). If [the department] disclosed such information [it] may be liable for damages under c. 214, § 3B. See also 801 CMR 3.00 (regulating dissemination of personal data under FIPA).” Under the Public Records Law, the burden shall be on the custodian to cite with specificity the exemption which applies. 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) (written response must "identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based ... "); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511 (custodian has the burden of establishing the applicability of an exemption). The Department is advised that a records custodian is required to not only cite an exemption, but to specifically explain the applicability of the exemption to the requested records in order to comply with the Public Records Law and its Access Regulations. The Department has not demonstrated how these records may be withheld in their entirety. Further, it is unclear how there is a privacy right in death certificates when the content of the death certificates, including “disease or cause of death” is prescribed by statute. G. L. c. 46, § 1. The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii), (b)(ii); see also G. L. c. 66, § 10(b)(iv) (a written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based . . .”).

Helen Rush-Lloyd SPR20/1212; SPR20/1213 Page 6 August 3, 2020 Order Accordingly, the Department is ordered to provide Ms. Lazar with a response to the requests, 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: Kay Lazar