Colman Herman v. Board of Registration in Medicine (SPR 20201630)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 23, 2020 SPR20/1630 Tara Douglas, Esq. Assistant General Counsel Board of Registration in Medicine 200 Harvard Mill Square, Suite 330 Wakefield, MA 01880 Dear Attorney Douglas: I have received the petition of Colman Herman appealing the response of the Board of Registration in Medicine (Board) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Herman requested the Board’s file for an identified doctor. The Board provided a response on September 8, 2020, in which it provided Mr. Herman with 14 pages of records responsive to his request, and indicated that it redacted portions of the records and withheld additional records pursuant to Exemptions (a) and (c) of the Public Records Law. Unsatisfied with this response, Mr. Herman petitioned this office and this appeal, SPR20/1630, 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) (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). 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

Tara R. Douglas, Esq. SPR20/1630 Page 2 September 23, 2020 The Board’s September 8th response In its September 8th response, the Board states that it has withheld responsive records pursuant to Exemption (a) of the Public Records law, and cites G. L. c. 112, § 5 and 243 C.M.R. 2.13 and 2.14 in support of its Exemption (a) claim. 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. The statute cited by the Board provides the following, in pertinent part: The board, including but not limited to the data repository and the disciplinary unit, shall keep confidential any complaint, report, record or other information received or kept by the board in connection with an investigation conducted by the board pursuant to this section, or otherwise obtained by or retained in the data repository; provided, however, that, except to the extent that disclosures of records or other information may be restricted as otherwise provided by law, or by the board's regulations, investigative records or information of the board shall not be kept confidential after the board has disposed of the matter under investigation… G. L. c. 112, § 5.

Tara R. Douglas, Esq. SPR20/1630 Page 3 September 23, 2020 The regulations cited by the Board provide the following: Closed complaint files, which contain the complaint and other information in matters which have been dismissed or otherwise resolved without adjudication, are public records. The name or a complainant or patient and relevant medical records shall be disclosed to the Respondent, but this information is otherwise confidential. The names of reviewers and the contents of complaint reviews shall be confidential. 243 C.M.R. 1.02(8)(c)(1). Disciplinary Unit files, which contain portions of complaint files (and related confidential files) as well as papers related to adjudicatory proceedings and attorney work product, are not public records and are confidential 243 C.M.R. 1.02(8)(c)(2). In its September 8th response, the Board states that it has withheld “[i]nformation that could be used to identify complainants, mandated reporters, patients, and/or victims of crimes.” The Board additionally indicates that it has withheld “Disciplinary Unit files, which contain portions of complaint files (and related confidential files) as well as papers related to adjudicatory proceedings and attorney work product, [which] are not public records and are confidential.” 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

Tara R. Douglas, Esq. SPR20/1630 Page 4 September 23, 2020 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 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 Exemption (c), the Board indicates that it has withheld “[p]ersonal information, including but not limited to, home addresses, personal telephone numbers, personal email addresses, and dates of birth,” as well as “[p]atient medical records and/or discussions or quotations of patient medical records.” Based on the Board’s response, I find it has met its burden to show that the identified information may be redacted and withheld pursuant to Exemptions (a) and (c) of the Public Records Law. As a result, I find the Board has satisfied its burden in responding to this request. Conclusion Accordingly, whereas I find the Board has met its burden to withhold the responsive records and information pursuant to Exemption (a), I will consider this administrative appeal closed. If Mr. Herman is not satisfied with the resolution of this administrative appeal, please be

Tara R. Douglas, Esq. SPR20/1630 Page 5 September 23, 2020 advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 10(b) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Rebecca S. Murray Supervisor of Records cc: Colman Herman