Mike Dunigan v. Boston Public Health Commission (SPR 20210306)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 23, 2021 SPR21/0306 Batool Raza, Esq. Assistant General Counsel Office of the General Counsel Boston Public Health Commission 1010 Massachusetts Avenue Boston, MA 02118 Dear Attorney Raza: I have received the petition of Mike Dunigan appealing the response of the Boston Public Health Commission (Commission) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on January 23, 2021, Mr. Dunigan requested copies of “. . . all Computer Aided Dispatch Transcripts (CADs), Calls For Service Reports, all incident reports, all bills, all police reports, all audio files for 911 calls, all log book entries, all documents and all 911 documents pertaining to [a specified address] from November 15, 2020 to the present.” The Commission provided a response on February 5, 2021, denying access to responsive records pursuant to Exemptions (a) and (c) of the Public Records Law. G. L. c. 4, § 7(26)(a), (c). Unsatisfied with the Commission’s response, Mr. Dunigan petitioned this office and this appeal, SPR21/0306, 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. 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

Batool Raza, Esq. SPR21/0306 Page 2 February 23, 2021 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 Commission’s February 5th response In its February 5, 2021 response, the Commission states that it possesses “. . . a CAD sheet, a Patient Care Report (‘PCR’), and a 911 call recording. The CAD sheet is created to track EMS responses. It includes the fields needed to coordinate and document dispatch operations including but not limited to, date, time added, time dispatched, time arrived, time closed, call taker ID, event ID, caller name, caller phone number, caller location, location information, event type, and type of call.” The Commission further states that “[t]he PCR is an electronic medical record to document the treatment EMS staff provides to the patient when it responds to calls. This contains several drop-down fields and narrative sections used to document patient care. Finally, EMS also has in its possession audio recording of the 911 calls. Like the CAD sheets and the PCRs, the calls include a description of the patient’s current or past medical condition, date of birth, his/her location, and additional identifying information. The Commission asserts that “[t]hese reports and recordings are confidential because they contain medical records protected by law,” and cites 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 Att’y 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.

Batool Raza, Esq. SPR21/0306 Page 3 February 23, 2021 Under its Exemption (a) claim, the Commission posits that because it is a covered entity under HIPAA, it is prohibited “from disclosing Protected Health Information (‘PHI’) without a valid patient authorization form or court order.” The Commission indicates that “[u]nder HIPAA, the definition of PHI means individually identifiable health information transmitted or maintained in any form or medium. See 45 CFR 160.103.” The Commission explains that “[i]ndividually identifiable health information includes demographic information that is created or received by a health care provider and that which relates to the individual’s past, present, or future physical or mental health or condition, the provision of health care to the individual, or the past, present, or future payment for the provision of health care to the individual, and that identifies the individual or for which there is a reasonable basis to believe the information can be used to identify the individual (emphasis added). Id.” The Commission states that “PHI includes many common identifiers, including, but not limited to, an individual’s name, address, birth date, Social Security Number and medical record number when combined with health information.” The Commission posits that “[s]ince PHI is broadly defined as that which could potentially be used to identify a patient, the disclosure of nearly any portion of a health record document could inadvertently violate Federal law. In effect, even a redaction of a health record to meet the de-identification standard could still compromise patient confidentiality where any portion of the record could be used, in connection with other publicly available information, to identify the patient. The Commission has reason to believe that, because of the particularly sensitive information and the amount of information about the incident(s) at this location made available on the Internet, disclosure of any portion would almost certainly violate Federal law.” Exemption (c) Exemption (c) applies to: personnel and medical files or information and any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy; provided, however, that this subclause shall not apply to records related to a law enforcement misconduct investigation G. L. c. 4, § 7(26)(c). Analysis under 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. Att’y Gen., 391 Mass. 1, 9 (1984); Att’y 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 exemption 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

Batool Raza, Esq. SPR21/0306 Page 4 February 23, 2021 nature; and (3) whether the same info1mation 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). This exemption 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 Exemption (c), the Commission asserts, “. . . the requested documents are exempt from disclosure because such documents constitute ‘medical files or information’ and ‘materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy.’ M.G.L. c. 4, §7(26)(c).” Based on its response, I find the Commission has met its burden to withhold responsive records under Exemption (c). See Globe Newspaper Co., 388 Mass. at 438 (identifying information is considered not only from the viewpoint of the public, but also from the vantage of those who are familiar with the individual). Consequently, I decline to opine on the applicability of the specified provision of HIPAA as it operates under Exemption (a) of the Public Records Law. Conclusion Accordingly, I will consider this administrative appeal closed. If Mr. Dunigan 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). Sincerely, Rebecca S. Murray Supervisor of Records cc: Mike Dunigan