Shawn Musgrave v. Department of Public Health (SPR 20220059)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 26, 2022 SPR22/0059 Helen Rush-Lloyd Records Access Officer Department of Public Health 250 Washington Street Boston, MA 02108 Dear Ms. Rush-Lloyd: I have received the petition of Shawn Musgrave 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 September 10, 2021, Mr. Musgrave requested, “[a]ll prescription and dispensation data submitted to the Prescription Monitoring Program (PMP) for Vimpat (lacosamide), a Schedule V drug.” Previous appeal The request was the subject of a previous appeal. See SPR21/3209 Determination of the Supervisor of Records (December 23, 2021). The Department responded on January 10, 2022. Unsatisfied with the response, Mr. Musgrave petitioned this office and this appeal, SPR22/0059, 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); 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 SPR22/0059 Page 2 January 26, 2022 The Department’s January 10, 2022 Response In its January 10th response, the Department cited Exemption (a) of the Public Records Law to withhold the requested records. 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, 154 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-546 (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 its January 10th response, the Department indicated the Prescription Monitoring Program (PMP) data is exempt under G. L. 94C, §24A(d), which states in pertinent parts as follows: Prescription information submitted to the department under this section shall be confidential and exempt from disclosure under clause Twenty-sixth of section 7 of chapter 4 and chapter 66. The department shall maintain procedures to ensure that the privacy and confidentiality of patients and patient information collected, recorded, transmitted and maintained is not disclosed to persons except as provided for in this chapter. G. L. 94C, § 24A(d).

Helen Rush-Lloyd SPR22/0059 Page 3 January 26, 2022 Current appeal In his appeal, Mr. Musgrave asserted, “DPH failed to address my argument that this request for de-identified data (i.e., ‘aggregate data’) is not subject to its cited exemption. In fact…in the same section of the M.G.L., the Massachusetts legislature explicitly codified my right to obtain this data.” Mr. Musgrave cited G. L. 94C, §24A(h) which states as follows: The department may provide de-identified information to a public or private entity for statistical research or educational purposes. G. L. 94C, § 24A(h). I find that the Department’s response does not explain how de-identified data may be withheld pursuant to G.L. 94C, § 24A(h). As a result, the Department has not sufficiently explained how the records are exempt from disclosure in their entirety pursuant to Exemption (a). Conclusion Accordingly, the Department is ordered to provide Mr. Musgrave with a response to the 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 this response to this office at pre@sec.state.ma.us. Mr. Musgrave may appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Shawn Musgrave