Theresa Walsh v. Executive Office of Health & Human Services (SPR 20232503)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 3, 2023 SPR23/2503 Leah Greene Public Records Coordinator Executive Office of Health and Human Services 67 Forest Street Marlborough, MA 01752 Dear Ms. Greene: I have received the petition of Theresa Walsh, Jr. appealing the response of the Executive Office of Health and Human Services (Office) to a request for public records. See G. L. c. 66 § 10A; see also 950 C.M.R. 32.08(1). The request is taken from the Office’s September 7, 2023 response. On August 25, 2023, Ms. Walsh requested, “... all records in the finding (deficiencies and fines) of the investigation into the care that my mother received at Regalcare in Holyoke that caused her death.” On September 7, 2023 and October 11, 2023, the Office provided responses. Unsatisfied with the Office’s responses, Ms. Walsh petitioned this office and this appeal, SPR23/2503, was opened as a result. Petitions to the Supervisor of Records Ms. Walsh is reminded that under the requirements in the Public Records Law, when petitioning the Supervisor of Records (Supervisor) for an appeal, the requester shall provide to the Supervisor complete copies of all correspondence associated with the petition, including a complete copy of the letter by which the request was made, including in the case of electronic communications, all header information indicating time, date, subject, sender and recipient email addresses. 950 C.M.R. 32.08(1)(f). 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). 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

Leah Greene SPR23/2503 Page 2 November 3, 2023 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. 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 Office’s September 7th and October 11th Responses In its September 7, 2023 response, the Office produced 530 pages responsive to the request and cited Exemptions (a) and (c) of the Public Records Law in support of the redactions to the requested records. Further, the Office withheld records pursuant to Exemption (n) of the Public Records Law. In its October 11, 2023 response, the Office advised, “[o]ur searching units have found and duplicated records responsive to your Freedom of Information Act (FOIA) request of 9/07/2023. Our initial review of the responsive documents has found that some of them are not of the type that can be directly released to you by our office. Therefore, we have forwarded them to the CMS Division of Freedom of Information for disclosure review.” 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, 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.”

Leah Greene SPR23/2503 Page 3 November 3, 2023 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 Office cited G. L. c. 66A, the Fair Information Practices Act (“FIPA”), to redact certain information and stated, “[i]f [the Office] disclosed such information, it may be liable for damages under G. L. c. 214, § 3B. See also 801 CMR 3.00 (regulating dissemination of personal data under FIPA).” Fair Information Practices Act (FIPA) The Office is reminded that FIPA and the Public Records Law are to be construed to work together consistent with the legislative purpose. 32 Op. Att’y Gen. 157, 160 (May 18, 1977). FIPA cannot provide a basis for withholding the requested information unless the records fall within a statutory exemption to the definition of public records. See Allen v. Holyoke Hosp., 398 Mass. 372, 379 (1986) (stating that “determining whether the record sought is protected by FIPA depends on whether the record is a public record pursuant to G. L. c. 4, § 7 Twenty-sixth, and subject to the disclosure provisions of G. L. c. 66A”). FIPA, by itself, cannot justify withholding information. A custodian must first specifically explain how the withheld information is exempt from the Public Records Law. Once a record is found to be exempt from the definition of public records, FIPA may also operate to restrict disclosure. Based on the Office’s response, it is unclear how the cited statutes and regulation specifically or by necessary implication permit the Office to redact the responsive records. Please be advised that for Exemption (a) to apply, said statute or regulation must either expressly state that the withheld record is not subject to disclosure under the Public Records Law, or limit dissemination of said information to a defined group or individuals or entities. The Office must clarify this matter. 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). Medical information that is of a personal nature and relates to a specifically named individual is exempt from disclosure. Brogan v. Sch. Comm. of Westport, 401 Mass. 306, 308 (1987); Globe Newspaper Co. v. Boston Ret. Bd., 388 Mass. 427, 438 (1983). Generally,

Leah Greene SPR23/2503 Page 4 November 3, 2023 medical information is sufficiently personal to warrant exemption. Id. at 432-34. There is a strong public policy in Massachusetts that favors confidentiality as to medical data about a person’s body. Globe Newspaper Co. v. Chief Med. Exam’r, 404 Mass. 132, 135 (1987). 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 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. 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). In its response, the Office states, “[t]he Office is prohibited from disclosing and has redacted certain information, including other patients’ names, personal information, and medical information, as well as the personal contact information of staff members. This information is exempt from disclosure pursuant to G. L. c. 4, § 7(26)(c) (‘Exemption (c)’). An individual’s medical information is categorically exempt under the first clause of Exemption (c). Globe Newspaper Co. v. Bos. Ret. Bd., 388 Mass. 427, 442 (1983). Even if not categorically exempt, [the Office] would redact an individual’s medical information pursuant to Exemption (c) as release of such information would constitute an unwarranted invasion of privacy, and the subject individual’s privacy interest outweighs the public interest in disclosure. The additional redacted information is of a highly personal nature, containing specific details which may identify individuals, and its disclosure may constitute an unwarranted invasion of personal privacy. The individuals’ privacy interests outweigh the public’s interest in disclosure.” To the extent that the records contain medical information that relates to a specifically named individual, I find the Office may permissibly redact such portions from the records pursuant to Exemption (c) of the Public Records Law. However, it is unclear what other personal information has been redacted from the responsive records. Based on the Office’s response, it is unclear how the information constitutes intimate details of a highly personal nature or how

Leah Greene SPR23/2503 Page 5 November 3, 2023 disclosure would result in personal embarrassment to an individual of normal sensibilities. PETA, 477 Mass. at 292. Also, the Office did not provide supporting information with respect to the balancing test which examines whether the public interest in obtaining the requested records outweighs the seriousness of any invasion of privacy. The Office must clarify these matters. Exemption (n) Exemption (n) permits the withholding of: records, including, but not limited to, blueprints, plans, policies, procedures and schematic drawings, which relate to internal layout and structural elements, security measures, emergency preparedness, threat or vulnerability assessments, or any other records relating to the security or safety of persons or buildings, structures, facilities, utilities, transportation, cyber security or other infrastructure located within the commonwealth, the disclosure of which, in the reasonable judgment of the record custodian, subject to review by the supervisor of public records under subsection (c) of section 10 of chapter 66, is likely to jeopardize public safety or cyber security. G. L c. 4, § 7(26)(n). Under Exemption (n), a records custodian may withhold a record if its release is likely to jeopardize public safety or cyber security. It is the duty of the custodian to exercise “reasonable judgment” to determine whether disclosure of the record may impact public safety. Id. Exemption (n) requires a two prong analysis. People for the Ethical Treatment of Animals (PETA) v. Dep’t. of Agric. Res., 477 Mass. 280, 286 (2017). The first prong examines “whether, and to what degree, the record sought resembles the records listed as examples in the statute”; specifically, the “inquiry is whether, and to what degree, the record is one a terrorist ‘would find useful to maximize damage.’” Id. at 289-90. With regard to a prong one analysis, if the requested record is not expressly listed in the text of the exemption, then Exemption (n) does not apply unless the record is related to one of the statute’s enumerated examples. See PETA, 477 Mass. at 288 (“we must interpret the ‘any other records’ clause as embracing only those records that, when released, are ‘likely to jeopardize public safety [or cyber security]’ in a similar way to one of the examples listed in exemption (n)”). The second prong examines whether, in the record custodian’s reasonable judgment, the requested records are factually and contextually likely to jeopardize public safety or cyber security. Id. at 289-90. However, the “reasonable judgment” language in Exemption (n) does not imply a heightened level of deference to the records custodian’s initial denial. Id. at 291. “[T]he primary focus on review is whether the custodian has provided sufficient factual heft for the supervisor of public records . . . to conclude that a reasonable person would agree with the custodian’s determination given the context of the particular case.” Id. at 289-90.

Leah Greene SPR23/2503 Page 6 November 3, 2023 In its response, the Office states, “[c]ertain portions of these records containing facility blueprints and/or floor plans have been withheld under G. L. c. 4, § 7(26)(n) because, in the reasonable judgment of the Office, disclosure of such records is likely to jeopardize public safety or cyber security.” Although, the Office indicates that “[c]ertain portions of these records containing facility blueprints and/or floor plans have been withheld . . .[,]” the Office did not provide sufficient factual heft to support the withholding of the requested records under Exemption (n). Specifically, the Office has not sufficiently explained how disclosure of the records is likely to jeopardize public safety or cyber security. See PETA, at 289-90. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Conclusion Accordingly, the Office is ordered to provide Ms. Walsh 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 the response to this office at pre@sec.state.ma.us. Ms. Walsh may appeal the substantive nature of the Office’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Theresa Walsh, Jr.