Shawn Musgrave v. Department of Public Health (SPR 20220842)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 26, 2022 SPR22/0842 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 appeals The request was the subject of previous appeals. See SPR21/3209 Determination of the Supervisor of Records (December 23, 2021); SPR22/0059 Determination of the Supervisor of Records (January 26, 2022) and SPR22/0427 Determination of the Supervisor of Records (March 8, 2022). The Department responded on March 22, 2022. Unsatisfied with the response, Mr. Musgrave petitioned this office and this appeal, SPR22/0842, 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 agency or municipality 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) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based…”); 950 C.M.R. 32.06(3); see 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 SPR22/0842 Page 2 April 26, 2022 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). The Department’s March 22nd response In its 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 restrict 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. Under its Exemption (a) claim, the Department references G. L. 94C, § 24A(d), which states in pertinent part that “[p]rescription information submitted to the department under this section shall be confidential and exempt from disclosure under the [Public Records Law].” The Department further advised, “… the data you seek may be available to you through a discretionary process, pursuant to M.G.L. c. 94C, §24A(h). That statute states that the department may provide deidentified information to a public or private entity for statistical research or educational purposes. The determination whether to provide the data is discretionary with the Department, and the form for requesting the data includes questions about your reasons for seeking the data.”

Helen Rush-Lloyd SPR22/0842 Page 3 April 26, 2022 Current appeal In his appeal, Mr. Musgrave asserts, “… there is a crucial carveout to the PMP confidentiality provision which allows the Department to ‘provide de-identified information to a public or private entity for statistical research or educational purposes.’” Given that G. L. c. 94C, § 24A(h) states that “the department may provide de-identified information to a public or private entity for statistical research or educational purposes,” I find that the Department has not met its burden to demonstrate that Exemption (a) specifically or by necessary implication exempts the requested de-identified data from disclosure. Conclusion Accordingly, the Department is ordered to redact where necessary and release any responsive de-identified information within ten (10) 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Shawn Musgrave