Nexi Durango v. Department of Public Health (SPR 20212380)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 27, 2021 SPR21/2380 Helen Rush-Lloyd Records Access Officer Department of Public Health 250 Washington Street Boston, MA 02108-4619 Dear Ms. Rush-Lloyd: I have received the petition of Lexi Durango appealing the response of the Department of Public Health (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 22, 2021, Ms. Durango requested an identified report. Previous appeal This request was the subject of a previous appeal. See SPR21/2002 Determination of the Supervisor of Records (August 20, 2021). The Department provided a response on September 15, 2021. Unsatisfied with the Department’s response, Ms. Durango petitioned this office and this appeal, SPR21/2380, 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

Helen Rush-Lloyd, RAO SPR21/2380 Page 2 September 27, 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 Department’s September 15th Response In its September 15, 2021 response, the Department stated it is unable to provide any records responsive to Ms. Durango’s request, “because doing so would be a violation of privacy laws, including FIPA, and an unwarranted invasion of privacy and, thus, is exempt from disclosure under G.L. c. 66 under exemptions: G.L. c. 4, § 7(26) (a) and (c).” The Department explained, “the Supervisor of Records directed the Department to provide specificity in its denial of access to records, including identifying the records in its possession that it intends to withhold from disclosure. The Department cannot identify any records it may have in its possession, because if the Department were to specifically identify records which it is withholding, such identification would confirm specific medical information related to a named individual.” 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.

Helen Rush-Lloyd, RAO SPR21/2380 Page 3 September 27, 2021 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 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 Prop. Dep’t, 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case by case basis. 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 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 Exemption (c). See Globe Newspaper Co. v. Exec. Office of Admin. and Finance, Suffolk Sup. No. 11-01184-A (June 14, 2013). 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 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).

Helen Rush-Lloyd, RAO SPR21/2380 Page 4 September 27, 2021 The types of personal information which this exemption is designed to protect includes: marital status, paternity, substance abuse, government assistance, family disputes and reputation. Id. at 292 n.13; - se - e -al-so- -D-o-e -v.- R-e-g-is-tr-a-r -of- M--o-to-r -V-e-hi-c-le-s, 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 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. The Department’s September 15th response asserted, “[t]he first clause of G.L. c. 4, §7(26)(c) categorically provides that medical files or information are not public records. ‘The Legislature has made such medical files or information absolutely exempt…’ Globe Newspaper Company v. Chief Medical Examiner, 404 Mass. 132, 135 (1989). To satisfy the SOR’s direction to provide specificity, the Department states that if there are any medical records regarding a retained foreign object in the specifically named individual, from surgery completed on July 11, 2018, the Department would withhold such medical records pursuant to G.L. c. 4, §7(26)(c).” In addition, the Department explained “[w]hile medical information is categorically exempt, here the protection of the individual’s medical information and privacy interests outweigh the public interest. To provide further specificity, the Department notes that, while the Department cannot provide the requested record, if it exists, such a record would consist of the medical details surrounding a surgery in which a foreign object was retained in an individual, and the Tufts Medical Center’s description of the event. Because sending such a report would confirm that the named individual experienced the specific medical event of having an object left in his or her body after surgery, the Department cannot send a redacted version, if such a report exists.” Based on the Department’s September 15th response, I find that the Department did not satisfy its burden in withholding these records pursuant to Exemption (c). Where the patient’s name remains anonymous, it is unclear how the records can be withheld in their entirety. See Reinstein, 378 Mass. at 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any nonexempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). It is additionally uncertain whether any responsive information is available from other sources. PETA, 477 Mass. at 292. Also, the Department needs to provide additional information regarding, “the protection of the individual’s medical information and privacy interests outweigh the public interest” with respect to the balancing test which examines whether the public interest in obtaining the requested information outweighs the seriousness of any invasion of privacy. The Department must clarify this matter.

Helen Rush-Lloyd, RAO SPR21/2380 Page 5 September 27, 2021 Conclusion Accordingly, the Department is ordered to provide Ms. Durango with a response to his request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. Sincerely, Rebecca S. Murray Supervisor of Records cc: Lexi Durango Laura Bartlett Jennifer K. Soivilien