Patricia Nieberg v. New Bedford, City of - Office of The City Solicitor (SPR 20212666)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 26, 2021 SPR21/2666 Officer Michael Boswell Records Access Officer New Bedford Police Department 871 Rockdale Avenue New Bedford, MA 02740 Dear Officer Boswell: I have received the petition of Patty Nieberg of the Associated Press appealing the response of the New Bedford Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 8, 2021, Ms. Nieberg requested “incident reports from 2018, witness statements, any public records from the Medical Examiner’s office involved, reports of any previous law enforcement encounters such as welfare checks” concerning an identified individual. The Department provided a response on September 21, 2021. Unsatisfied with the Department’s response, Ms. Nieberg petitioned this office and this appeal, SPR21/2666, 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. 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 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

Officer Michael Boswell, RAO SPR21/2666 Page 2 October 26, 2021 custodian must provide the responsive records. The Department’s September 21st Response In its September 21, 2021 response, the Department referred to a prior response given to Ms. Nieberg on July 21, 2021. In the July 21st response, the Department identified “Incident Report # 18-5298-OF” as a record responsive to Ms. Nieberg’s request. The Department stated, “[t]he Department declines to produce the above-described record pursuant to both M.G.L. c. 4 § 7(26)(c) the ‘Privacy Exemption’ and M. G.L. c. 4 § 7(26)(a), the ‘Statutory Exemption’ and the HIPAA Privacy Rule 45 C.F.R. § 164.502(a)(1).” 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. In the September 21st response, the Department explained the “Health Insurance Portability and Accountability Act of 1996 (HIPAA) is a federal law that established federal standards to protect sensitive patient health information from being disclosed without a patient’s consent or knowledge. Incident Report # 18-5298-OF documents the New Bedford Police Department’s response to a call where officers were assisting New Bedford Emergency Medical Services, the City’s emergency medical response department. Therefore, the police officer’s report documenting the treatment and medical condition of an identifiable patient is exempt from the Public Records Law pursuant to M. G.L. c. 4 § 7(26)(a), the Statutory Exemption and the

Officer Michael Boswell, RAO SPR21/2666 Page 3 October 26, 2021 HIPAA Privacy Rule 45 C.F.R. § 164.502(a)(1).” The applicable regulation is part of the implementation of HIPAA, and provides in relevant part: Definitions. . . . Covered entity means: (1) A health plan. (2) A health care clearinghouse. (3) A health care provider who transmits any health information in electronic form in connection with a transaction covered by this subchapter. . . . Health plan means an individual or group plan that provides, or pays the cost of, medical care. . . . (2) Protected health information excludes individually identifiable health information: . . . (iii) In employment records held by a covered entity in its role as employer 45 C.F.R. § 160.103 HIPAA sets forth rules and regulations for the use and disclosure of protected health information by covered entities. The Department must clarify how it is a covered entity as defined by HIPAA. 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). 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. 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). When citing Exemption (c), the Department explained the “Incident Report # 18-5298- OF documents an incident during which the New Bedford Police Department was called to

Officer Michael Boswell, RAO SPR21/2666 Page 4 October 26, 2021 provide medical assistance. The report describes the officer’s observations of a patient’s medical condition(s) as well as the medical assistance provided by the responding officers.” In addition, the Department stated that “because [Ms. Nieberg is] familiar with the patient, it is impossible for the Department to redact the record in such a way that preserves the privacy of the named individual or his surviving family members.” Based on the Department’s September 21st response, I find that the Department did not satisfy its burden in withholding these records pursuant to Exemption (c). To the extent the records contain medical information of an identified individual, the Department may permissibly withhold that portion from disclosure. However, it is unclear why the Department cannot provide segregable portions of the requested responsive records. The Department’s response did not contain the specificity required in a denial of access to public records in its entirety. The Department is advised that a records custodian is required to not only cite an exemption, but to specifically explain the applicability of the exemption to the requested records in order to comply with the Public Records Law and its Regulations. Further, to deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3)(c)(4). The Department must clarify this matter. Conclusion Accordingly, the Department is ordered to provide Ms. Nieberg with a response to this 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, .n 17 ~ ~ ~ - ~-. . if ~ Rebecca S. Murray Supervisor of Records cc: Patty Nieberg; Associated Press