Jackie Turner v. Department of Public Health (SPR 20201973)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 28, 2020 SPR20/1973 Helen Rush-Lloyd Public Records Massachusetts Department of Public Health 250 Washington Street Boston, MA 02108 Dear Ms. Rush-Lloyd: I have received the petition of Jackie Turner appealing the response of the Department of Public Health (Department/DPH) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on August 31, 2020, Ms. Turner requested “…all complaint results regarding complaints against Planned Parenthood (PP) from Aug. 1 2020 to the present…all emails pertaining to the all PP complaints, all notes, all reports, all interoffice…to and from Steve Reardon pertaining to all complaints...” Previous Appeals The requested records were the subject of a prior appeal. See SPR20/1788 Determination of the Supervisor of Records (October 7, 2020). In my October 7th determination, I closed the appeal based on the Department’s intention to provide a response to Ms. Turner’s request. The Department provided said response on October 14, 2020, indicating the responsive records that were provided were redacted pursuant to Exemption (a), citing G. L. c. 66, § 10B. Unsatisfied with the Department’s response, Ms. Turner petitioned this office and this appeal, SPR20/1973, 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). 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 SPR20/1973 Page 2 October 28, 2020 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. Current Appeal In its October 14th response, the Department states “[o]n September 22, 2020, the Department provided you with the records that are responsive to your request. You objected to the Department's redactions of the names of certain employees and staff at Planned Parenthood, specifically, redactions of names that appeared in a lawsuit that was attached to the complaint. The Department redacted those names as it is statutorily required to do, pursuant to G.L. c. 66, § 10B which states that the ‘home address, telephone number, personal email address or place of employment or education ... of persons providing or training in family planning services’ shall not be disclosed.” 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

Helen Rush-Lloyd SPR20/1973 Page 3 October 28, 2020 individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. G.L. c. 66, § 10B The applicable statute that the Department cited to redact the records is G. L. c. 66, § 10B which, in relevant part states: " ... The home address, telephone number, personal email address or place of employment or education….of persons providing or training in family planning services ... shall not be public records ... " G. L. c. 66, § 10B (emphasis added). In its response, the Department explains “[b]ecause the location where these individuals work is known, in order to protect the identity of individuals who work in family planning, the Department has redacted their names. Additionally, this information was withheld or redacted pursuant to G.L. c. 4, § 7(26)(a) because it is exempt by statute pursuant to G.L. c. 66, § 10B. Although the lawsuit is, as you note, a public document, the fact that the names can be found through another source does not relieve the Department of its statutory obligation to not disclose those names.” It is my understanding that disclosure of the names of employees at Planned Parenthood would reveal the place of employment of those who provided family planning services to individuals, which is restricted under G. L. c. 66, § 10B. Based on the Department’s October 14th response, I find the Department has met its burden to redact the names of the Planned Parenthood employees under G. L. c. 66, § 10B, as it operates through Exemption (a). Conclusion Accordingly, I find Department met its burden in redacting the requested records under G. L. c. 66, § 10B as it operates through Exemption (a) of the Public Records Law. Therefore, I consider this administrative appeal closed. If Ms. Turner 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, G. L. c. 66, § 10(b) pursuing administrative appeal does not limit availability of applicable judicial remedies).

Helen Rush-Lloyd SPR20/1973 Page 4 October 28, 2020 Sincerely, Rebecca S. Murray Supervisor of Records cc: Jackie Turner