Florida Mercury v. Board of Registration in Medicine (SPR 20201662)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 24, 2020 SPR20/1662 Tara Douglas, Esq. Assistant General Counsel Board of Registration in Medicine 200 Harvard Mill Square, Suite 330 Wakefield, Massachusetts 01880 Dear Attorney Douglas: I have received the petition of Florida Mercury appealing the response of the Board of Registration in Medicine (BORIM) to a request for public records. G. L. c. 66, § l0A; see also 950 C.M.R. 32.08(1). Specifically, on August 28, 2020, Ms. Mercury requested, “…all documents pertaining to the lawsuit listed on the profile of [a named physician] include, docket number, offer of proof, the court county, all settlements, the case [c]omplaint etc.” Unsatisfied with the response, Ms. Mercury appealed and SPR20/1662 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. G. L. c. 66, § 10(b)(iv). BORIM’s September 10th Response In its September 10st response, BORIM responded to Ms. Mercury’s request and produced 2 pages of documents responsive to the request consisting of a print-out copy of the physician’s profile from the BORIM’s Public Profile database. BORIM stated in part that it is prohibited by statute from 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 Douglas, Esq. SPR20/1662 Page 2 September 24, 2020 disclosing certain records related to statutory reports pursuant to Exemption (a) of the Public Records Law and cited G. L. c. 111, § 53B; G. L. c. 112, §§ 5A through 51 and/or 243 CMR. 2.00, 243 CMR 1.02(8), 1.03(14). 1.03 (14), 2.13 and 2.14 in support of its Exemption (a) claim. BORIM claimed, “patient medical records and/or discussions or quotations of patient medical records are exempt from disclosure. See G.L. c. 4, § 7(26)(a) and (c); see also HIPAA….” 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 statutes cited by the Board provides the following, in pertinent part: Any person licensed under section fifty-one shall report to the board of registration in medicine when the licensee denies, restricts, revokes, or fails to renew staff privileges, or accepts the resignation of, any physician registered with the board as qualified to practice medicine in the commonwealth for any reason related to the registrant's competence to practice medicine or for any reason related to a complaint or allegation regarding any violation of law or regulation, or hospital, health care facility or professional medical association by-laws, whether or not the complaint or allegation specifically cites violation of a specific law, regulation or by-law. The report shall be filed within thirty days of the occurrence of the reportable action and include a statement detailing the nature and circumstances of the action, its date, and the reasons for it. Except as provided in section five of chapter one hundred and twelve, all information contained in a report filed under this section shall be confidential, and the board may disclose it only if doing so is

Tara Douglas, Esq. SPR20/1662 Page 3 September 24, 2020 necessary to enable the board to use the information in a disciplinary proceeding against the registrant … G. L. c. 111, § 53B. 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. 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). The Board contends that "[it] is prohibited from disclosing records, and information acquired therefrom, that is maintained in the Board’s Data Repository as they are confidential pursuant to statute. Mandated reports are confidential, unless otherwise required by law.” Exemption (c) Exemption (c) applies to: personnel and medical files or information; also any other materials or data relating to a specifically named individual, the disclosure of which may

Tara Douglas, Esq. SPR20/1662 Page 4 September 24, 2020 constitute an unwarranted invasion of personal privacy G. L. c. 4, § 7(26)(c). First clause of Exemption (c) medical 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 is sufficiently personal 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). First clause - Personnel 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 information that relates to an identifiable individual and is of a “personal nature.” Id. at 434. Massachusetts courts have found that “core categories of personnel information that are ‘useful in making employment decisions regarding an employee’” may be withheld from disclosure. Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 58 Mass. App. Ct. 1, 5 (2003). For example, “employment applications, employee work evaluations, disciplinary documentation, and promotion, demotion, or termination information pertaining to a particular employee,” may be withheld pursuant to the first clause of Exemption (c). Wakefield Teachers Ass’n v. School Comm., 431 Mass. 792, 798 (2000). The courts have also discussed specific categories of records that may be redacted under the first clause. See Globe Newspaper Co. v. Exec. Office of Admin. and Finance, Suffolk Sup. No. 11-01184-A (June 14, 2013). Nevertheless, there is a strong public interest in monitoring public expenditures and public employees have a diminished expectation of privacy with respect to public employment matters. See George W. Prescott Publishing Co. v. Register of Probate for Norfolk County, 395 Mass. 274, 278 (1985); Globe Newspaper Co., 388 Mass. at 436 n.15. Further, the public has an interest in knowing whether public employees are “carrying out their duties in an efficient and law-abiding manner.” Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 158 (1979). As a result, certain information that is considered personal in the ordinary sense of the word may be considered part of a public record if relating to an individual’s official responsibilities. See Brogan v. School Comm. of Westport, 401 Mass. 306, 309 (1987). Second clause of Exemption (c) - Privacy Analysis under the second clause of Exemption (c) is subjective in nature and requires a

Tara Douglas, Esq. SPR20/1662 Page 5 September 24, 2020 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 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. With respect to Exemption (c), the Board asserts, “[m]edical and personnel files or information are absolutely exempt from mandatory disclosure where the files or information are of a personal nature and relate to a particular individual. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 438 (1983). The release of the medical statements, even without other particular identifying details, create[s] a grave risk of indirect identification. Id.” I find that given its explanation in its September 8th response, BORIM has met its burden to withhold responsive records as contemplated by Exemptions (a) and (c) of the Public Records Law. As a result, I find that BORIM 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, I will consider this administrative appeal closed. If Ms. Mercury is not satisfied with the resolution of this administrative appeal, please be 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).

Tara Douglas, Esq. SPR20/1662 Page 6 September 24, 2020 Sincerely, Rebecca S. Murray Supervisor of Records cc: Florida Mercury