Stephanie Ebbert v. Department of Early Education and Care (SPR 20201327)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 21, 2020 SPR20/1327 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.” Previous Appeal This request has been the subject of a previous appeal. See SPR20/1136 Determination of the Supervisor of Records (July 23, 2020). In my July 23rd determination, I found the Department had not met its burden to show that the redacted information may be withheld under Exemption (c) of the Public Records Law. The Department provided a new response on August 5, 2020, producing an index of positive COVID-19 reports among Exempt Emergency Child Care Programs, with the names of all programs redacted, as well as municipalities that contain only one program. Unsatisfied with this response, Ms. Ebbert petitioned this office, and this appeal, SPR20/1327, was opened as a result. 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. SPR20/1327 Page 2 August 21, 2020 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. Current Appeal In its August 5, 2020 response, the Department states that it has withheld the names of programs that have reported a positive COVID-19 test, and the names of municipalities where only one program was open, pursuant to Exemption (c) of the Public Records Law. 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).

Denise Karlin, Esq. SPR20/1327 Page 3 August 21, 2020 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). 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.” In its August 5th response, the Department asserts that “[i]f the Requestor had the names of the specific programs that had positive COVID-19 results, it would not be difficult to then determine through other sources the names of those families using the child care services of that particular program and link a positive COVID-19 test result to a specific person, thus leading to the disclosure of the exempt medical information.” In her appeal petition, Ms. Ebbert argues that Exemption (c) does not apply to the requested information, because “[d]isclosing the name and location of a program with positive tests is not the same as disclosing the name or identifying information of a person who had a positive test” (emphasis in original). Ms. Ebbert additionally disputes whether disclosure of the

Denise Karlin, Esq. SPR20/1327 Page 4 August 21, 2020 program names permits the identification of specific individuals, except for situations “where a staff member tested positive and the program has only one staff member.” Despite the Department’s responses, I find it has not met its burden to show that Exemption (c) permits the withholding of program names. Specifically, I find that the Department has not shown disclosure of the names of programs with positive test results will allow for the identification of the medical information of specific individuals, where the program in question has more than one staff member or student. The privacy protections contained in Exemption (c) apply to “specifically-named individual[s].” See G. L. c. 4, § 7(26)(c). Accordingly, I find the Department may not redact the program names, in their entirety, under Exemption (c). 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 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: Stephanie Ebbert, Boston Globe