Anonymous Requestor v. Northampton, City of - City Clerk (SPR 20232356)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 17, 2023 SPR23/2356 Pamela L. Powers City Clerk City of Northampton 210 Main Street, Room 4 Northampton, MA 01060 Dear Ms. Powers: I have received the petition of Anonymous Requestor appealing the response of the City of Northampton (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 12, 2023, the requestor sought a copy of “the death certificate of [an identified individual] who died on May 20th, 2023 in his apartment on [identified street] in Northampton…” Prior appeal This request was the subject of a prior appeal. See SPR23/2043 Determination of the Supervisor of Records (September 12, 2023). In my September 12th determination, I closed the appeal as there was no written request. The City responded on September 27, 2023, and provided a redacted death certificate. Unsatisfied with the response, the requestor petitioned this office and this appeal, SPR23/2356, 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 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

Pamela L. Powers SPR23/2356 Page 2 October 17, 2023 order to withhold a requested record. G. L. c. 66, § 10(d)(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 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). 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 custodian must provide the responsive records. The City’s September 27th Response In its September 27, 2023 response, the City cited Exemptions (a) and (c) of the Public Records Law to redact the 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 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. When citing HIPAA, the City states, “an identifiable decedent’s health information is protected for 50 years following the date of death of the individual… Health information can be disclosed if a written HIPPA authorization from a personal representative of the individual is

Pamela L. Powers SPR23/2356 Page 3 October 17, 2023 obtained and provided to this office. We understand the personal representative to be the informant listed on the death record.” 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 City 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). 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.

Pamela L. Powers SPR23/2356 Page 4 October 17, 2023 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. When citing Exemption (c), the City states, “[Exemption (c)] permits disclosure of protected health information about a decedent to: a named family member; a person who was involved in the individual’s health care; or a person involved in payment for care prior to the individual’s death. Disclosure of medical information listed on the death record for the named individual… may constitute an unwarranted invasion of privacy; the cause of death is of a highly personal nature and may result in embarrassment to the family who may be living and working in this community.” The City’s response did not did not contain the specificity required in a denial of access to public records. Based on the City’s response, it is unclear how the redacted information constitutes intimate details of a highly personal nature or how disclosure would result in personal embarrassment to an individual of normal sensibilities. It is additionally uncertain whether any of the information is available from other sources. PETA, 477 Mass. at 292. Also, the City did not provide additional information with respect to the balancing test which examines whether the public interest in obtaining the requested information outweighs the seriousness of any invasion of privacy. As a result, I find that the City did not meet its burden of specificity in redacting the records under Exemptions (a) and (c) of the Public Records Law. Conclusion Accordingly, the City is ordered to provide the requestor with a response to the request, provided 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. The

Pamela L. Powers SPR23/2356 Page 5 October 17, 2023 requestor may appeal the substantive nature of the City’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Anonymous Requestor