Andrew McIsaac v. Department of Mental Health (SPR 20213386)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 13, 2022 SPR21/3386 Olubunmi A. Olotu, Esq. Assistant General Counsel Department of Mental Health 25 Staniford Street Boston, MA 02114 Dear Attorney Olotu: I have received the petition of Andrew D. McIsaac appealing the response of the Department of Mental Health (Department) to his request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On December 17, 2021, Mr. McIsaac requested, “copies of the investigation reports” associated with named incidents reports. On December 30, 2021, the Department responded. Unsatisfied with the Department’s response, Mr. McIsaac petitioned this office and this appeal, SPR21/3386, 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. Current Appeal In his current appeal, Mr. McIsaac states the Department redactions were too broad, “…only personally-identifiable information (e.g. name, address, certain details about patient's life situation) should be redacted from the investigation reports.” 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

Olubunmi A. Olotu, Esq. SPR21/3386 Page 2 January 13, 2022 The Department’s December 30th response In its December 30th the Department states, “[t]he records that you are requesting are generated as the result of investigations conducted by DMH at a private facility licensed by DMH. DMH investigation records contain the types of exempt information and records identified below. This information has been redacted to remove material exempt from disclosure pursuant to applicable statutes, privacy, and public records laws, as set forth below.” 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 this case the Department explains, “patient identifiers and medical information were redacted as they are exempt from disclosure under G.L. c. 4, § 7(26) (a), under HIPAA…” The Department further states, “…medical files or information fall under the category of ‘protected health information’ (PHI), the disclosure of which is prohibited under federal law. The Health Insurance Portability and Accountability Act of 1996 (‘HIPAA’) prohibits disclosure of PHI except as required or permitted by HIPAA, specifically subpart E of part 164 or subpart C of part 160 of 45 CFR subchapter C. (See 45 CFR 164.502.).”

Olubunmi A. Olotu, Esq. SPR21/3386 Page 3 January 13, 2022 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 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 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 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. In the Department’s December 30th response, it cited Exemption (c) for redactions made to the December 30th response, “DMH also redacted the names and other identifier of the reporters of the incidents and of persons interview pursuant to G.L. c. 4, sec 7(26) (c). G.L. c. 4, sec 7(26) (c) provides that materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy is exempt from disclosure under G.L. c. 66.” The Department further stated, “…in applying the required balancing test, DMH maintains that the disclosure of personal identifying information regarding the private citizens creates a grave risk of irreparable harm to the citizens. Disclosure of personal identifying information regarding the alleged conduct of private citizens included in the

Olubunmi A. Olotu, Esq. SPR21/3386 Page 4 January 13, 2022 investigation reports, whether as reporters of the incident, the alleged wrongdoers, or witnesses who may be perceived as complicit in the incidents, would be harmful to their personal and professional reputations.” In camera inspection In order to facilitate a determination as to the applicability of the Exemption (a) and Exemption (c) claims made by the Department to redact responsive records, the Department must provide this office with un-redacted copies of the responsive records for in camera inspection. See 950 C.M.R. 32.08(4). After I complete my review of the records, I will return the records to the Department’s custody and issue an opinion on the public or exempt nature of the records. 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. Please be aware, any cover letter submitted to accompany the relevant records may be subject to disclosure. Order Accordingly, the Department is ordered to provide this office with un-redacted copies of the responsive records for in camera inspection without delay.

Olubunmi A. Olotu, Esq. SPR21/3386 Page 5 January 13, 2022 Sincerely, Rebecca S. Murray Supervisor of Records cc: Andrew D. McIsaac