Stephanie Ebbert v. Department of Early Education and Care (SPR 20201757)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 5, 2020 SPR20/1757 Denise Karlin, Esq. Assistant General Counsel 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/EEC) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on August 10, 2020, Ms. Ebbert requested the following records: [1] The names and locations of any and all child care programs that have reported cases of coronavirus since programs became eligible to reopen on June 22; [2] Copies of incident reports provided to the EEC about coronavirus cases in Child care programs; [3] The number of children with confirmed exposures at each location; [4] The number of staff with confirmed exposures at each location; [5] The duration of time that each facility or an individual classroom in that facility was closed as a result[.] The Department responded on September 11, 2020, providing responsive records in redacted form pursuant to Exemptions (a) and (c) of the Public Records Law. G. L. c. 4, § 7(26)(a), (c). Unsatisfied with the Department’s response, Ms. Ebbert petitioned this office and this appeal, SPR20/1757, was opened as a result. This appeal pertains to items 1 and 2 only. While this appeal was pending, the Department provided a supplemental response on October 2, 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 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. SPR20/1757 Page 2 October 5, 2020 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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Department’s September 11th response In its September 11, 2020 response, the Department enclosed a “. . . spreadsheet that contains the contents of all incident reports received related to cases of COVID-19 in its licensed child care programs since licensed programs reopened on June 29, 2020. . . . There is no actual ‘report,’ only the information provided through these fields. The spreadsheet EEC is providing contains the exact information submitted by the provider except as expressly redacted, in whole or in part.” The Department redacted portions of the spreadsheet under Exemptions (a) and (c). 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

Denise Karlin, Esq. SPR20/1757 Page 3 October 5, 2020 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. Under Exemption (a), the Department explains that it “. . . is prohibited from disclosing specific details regarding possible exposure to COVID-19, such role of the person in the program (e.g., child, provider, licensee, specific circumstances or locations of where initial COVID-19 exposure may have occurred, and any COVID-19 test results, either positive or negative, because this information constitutes personal data protected from disclosure pursuant to G.L. c. 66A, the Massachusetts Fair Information Practices Act (‘FIPA’). If EEC were to disclose such information, EEC could be liable for damages under G.L. c. 214, § 3B. See also 801 CMR 3.00 (regulating dissemination of personal data under FIPA). By virtue of the foregoing statutory prohibition on the disclosure of personal data, this information is also exempt pursuant to G.L. c. 4, §7(26)(a) because it is exempt by statute or necessary implication thereof.” Fair Information Practices Act (FIPA) FIPA and the Public Records Law are to be construed to work together consistent with the legislative purpose. 32 Op. Atty Gen. Mass. 157, 160 (May 18, 1977). FIPA cannot provide a basis for withholding the requested information unless the records fall within a statutory exemption to the definition of public records. See Allen v. Holyoke Hosp., 398 Mass. 372, 379 (1986) (stating that “determining whether the record sought is protected by FIPA depends on whether the record is a public record pursuant to G. L. c. 4, § 7 Twenty-sixth, and subject to the disclosure provisions of G. L. c. 66A”). FIPA, by itself, cannot justify withholding information. A custodian must first specifically explain how the withheld information is exempt from the Public Records Law. Once a record is found to be exempt from the definition of public records, FIPA may also operate to restrict 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 medical information that relates to an identifiable individual and is of a “personal nature.” Globe Newspaper Co., 388 Mass. at 434. Medical

Denise Karlin, Esq. SPR20/1757 Page 4 October 5, 2020 information that is of a personal nature and relates to a specifically named individual is exempt from disclosure. Brogan, 401 Mass. at 308; Globe Newspaper Co., 388 Mass. at 438. Generally, medical information is sufficiently personal to warrant exemption. Id. 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 Medical Examiner, 404 Mass. 132, 135 (1987). Under the first clause of Exemption (c), the Department indicates that it has redacted individuals’ medical information because it is exempt from disclosure pursuant to the first clause of G.L. c. 4, §7(26)(c).” 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. Under the second clause of Exemption (c), the Town states “[a]fter [its] diligent review of its records responsive to your request, investigatory materials related to Police Chief will be withheld in their entirety since they involve details of a highly personal nature involving the Police Chief, including, but not limited to, details regarding familial status, family disputes and reputation in the community.” Under the second clause of Exemption (c), the Department states that “[t]his information

Denise Karlin, Esq. SPR20/1757 Page 5 October 5, 2020 is also exempt under the second clause of G.L. c. 4, §7(26)(c) as it is private information, the disclosure of which may constitute an unwarranted invasion of privacy. This information is of a highly personal nature and contains specific details, which may identify individuals. The public’s interest in the disclosure of this information does not outweigh the individuals’ privacy interests associated with such disclosure.” In her appeal petition, Ms. Ebbert states the following: First, it is unclear how the spreadsheet provided by the Department is fully responsive to the first request, especially where the spreadsheet appears to include exposures, but does not make clear which incidents reflect actual cases reported by a child care program, and which reflect something else such as an exposure. I respectfully request that the Supervisor order the Department to more fully respond to this request, or state that it does not have the requested record within its control. In the Department’s October 2, 2020 supplemental response, it states that “[i]n response to the Requestor’s August 10, 2020 request, EEC provided on September 11, 2020, the spreadsheet containing the contents of all incident reports received related to cases of COVID-19 in its licensed child care programs since licensed programs reopened on June 29, 2020, and indicated that those reports did not distinguish between confirmed cases and potential exposures.” In a letter dated October 5, 2020, Ms. Ebbert states “. . . [i]f the Department has a record showing what childcare programs reported cases of Coronavirus, either without the inclusion of additional incident reports or with a way to distinguish between reported cases and other incidents, it should provide that record. G.L. c. 66, § 10(a). If the Department does not have a record [] of what programs reported cases of Coronavirus, it must state as much. G.L. c. 66, § 10(b)(ii).” In light of the above, I find the Department must clarify whether or not it possesses records as described above. 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). Conclusion Accordingly, the Department is ordered to provide Ms. Ebbert with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) 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.

Denise Karlin, Esq. SPR20/1757 Page 6 October 5, 2020 Further, Ms. Ebbert states: [T]he Department does not meet its burden to show why it is permitted to make all of the redactions that it made to the spreadsheet produced . . . The Department redacted portions of Columns G (“Event Location”), H (“Summary/Type of Case”), and I (“Additional Description”), citing Exemptions (c) and Exemption (a). . . . Though the Department is correct that medical information tied to an identified individual is exempt pursuant to Exemption (c) and (a), the Department incorrectly redacted both all identifying information and the medical information itself. The Department should not redact the medical information, as it is not exempt under either Exemption (a) or (c) absent the name or other identifying information of any individual. In its October 2nd response, the Department explains that “EEC made redactions to the spreadsheet . . . to protect the privacy of programs’ children and staff under Exemption (c). There is no dispute that positive COVID-19 test information is private medical information protected by the exemption. The sheet contains the names of the programs, and EEC made targeted redactions to fields G, H, and I to protect the identities of the individuals involved. Statements, such as ‘a toddler teacher tested positive for COVID-19’ or ‘a child was exposed in their home’ or ‘the Provider’s brother-in-law was exposed to COVID-19’ have been redacted. There is more than sufficient information remaining in those columns for the Requestor to ascertain what occurred and [] what the response of the program was to the occurrence. If the Requestor had the information that had been redacted, it would be easy to determine the identities of the specific individuals whose medical information had been revealed. As the Supreme Judicial Court has held, otherwise disclosable information is exempt if ‘protected information could be gleaned through comparison’ with other information. Boston Globe Media Partners v. Department of Public Health, 484 Mass. 427, 437 (2019).” The Department further explains that “[t]he spreadsheet provides itemized information with certain medical information, which could lead to direct identification of specific individuals, redacted. Revealing the withheld information . . . will allow readers of the newspaper to know who had COVID-19. In the balance between disclosure and privacy, especially for such sensitive and personal information, the balance must be struck in favor of protecting the identities of the staff and especially of the children. . . . If EEC were to disclose anything more, this sensitive information could be determined by comparing specific details that have been redacted with remaining information about the children and families in these programs and also with information that the Requestor may obtain elsewhere. The risk of disclosure of sensitive medical information of the Commonwealth’s most vulnerable residents – its children – does not outweigh the public interest of the Requestor learning the limited information that EEC has redacted.” In camera inspection In order to facilitate a determination as to the applicability of the exemption claims made by the Department to redact portions of the responsive records, the Department must provide this

Denise Karlin, Esq. SPR20/1757 Page 7 October 5, 2020 office with an un-redacted copy of the responsive record for in camera inspection. See 950 C.M.R. 32.08(4). After I complete my review of the record, I will return the record to the Department’s custody and issue an opinion on the public or exempt nature of the record. The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Mass. Comm’n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. Order Accordingly, the Department is ordered to provide this office with an un-redacted copy of the responsive record for in camera inspection without delay. Sincerely, Rebecca S. Murray Supervisor of Records cc: Stephanie Ebbert