Andrew McIsaac v. Department of Mental Health (SPR 20222548)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 23, 2022 SPR22/2548 Misael Garcia Records Access Officer Department of Mental Health 25 Staniford Street Boston, MA 02114 Dear Mr. Garcia: I have received the petition of Andrew McIsaac appealing the response of the Department of Mental Health (Department/DMH) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 24, 2022, Mr. McIsaac requested “…all final documents associated with the most recent survey of Fuller Hospital.” The Department provided a response on November 7, 2022. Unsatisfied with the Department’s response, Mr. McIsaac petitioned this office, and this appeal, SPR22/2548, 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); 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. The Department’s November 7th response In its November 7, 2022 response, the Department stated that it was redacting the 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

Misael Garcia SPR22/2548 Page 2 November 23, 2022 under Exemptions (a) and (c) of the Public Records Law. G. L. c. 4, § 7(26)(a), (c). 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 Att’y 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 its response, the Department states that “M.G.L. c. 123, § 36 specifically provides that patient medical records are private and not open to public inspection.” G. L. c. 123, § 36 provides in relevant part that: The department shall keep records of the admission, treatment and periodic review of all persons admitted to facilities under its supervision. Such records shall be private and not open to public inspection except (1) upon proper judicial order whether or not in connection with pending judicial proceedings, (2) that the commissioner shall allow the attorney of a patient or resident to inspect records of said patient or resident if requested to do so by the patient, resident or attorney, (3) that the commissioner may permit inspection or disclosure when in the best interest of the patient or resident as provided in the rules and

Misael Garcia SPR22/2548 Page 3 November 23, 2022 regulations of the department and (4) as required by section one hundred and seventy-eight C to one hundred and seventy-eight O, inclusive, of chapter six. This section shall govern the patient records of the department notwithstanding any other provision of law. G. L. c. 123, § 36. To the extent the redacted information constitutes information of “. . . the admission, treatment and periodic review of all persons admitted to facilities under its supervision,” I find the Department may permissibly withhold the information from disclosure under G. L. c. 123, § 36. 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. 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).

Misael Garcia SPR22/2548 Page 4 November 23, 2022 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 its response, the Department stated that “…unique job titles, email addresses and names of private citizens were redacted pursuant to G. L. c. 4, § 7(26)(c).” The Department explained that “[t]he redacted information is of a highly personal nature and the individuals’ privacy interests in this information substantially outweigh the public’s right to know this information.” The Department further elaborated that “[d]isclosure of personal identifying information regarding the alleged conduct of private citizens… would be harmful to their personal and professional reputations and the disclosure could result in personal embarrassment to an individual of normal sensibilities.” Based on the Department’s response, it is unclear how the “unique job titles” could be withheld under Exemption (c). Specifically, it is uncertain how the information constitutes intimate details of a highly personal nature, nor how disclosure of the information is likely to result in personal embarrassment to an individual of normal sensibilities. It is also not clear from the Department’s response whether the same information is available from other sources. PETA, 477 Mass. at 291. Further, the Department must clarify whether the redacted email addresses are personal email addresses of private citizens. Conclusion Accordingly, the Department is ordered to provide Mr. McIsaac with a response to the request, in a manner consistent with this order, the Public Records Law and its Regulations 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. Mr. McIsaac may appeal the substantive nature of the Department’s response within 90 calendar days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Andrew McIsaac