Anonymous Requestor v. Northampton, City of - City Clerk (SPR 20232613)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 14, 2023 SPR23/2613 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 appeals This request was the subject of prior appeals. See SPR23/2043 Determination of the Supervisor of Records (September 12, 2023) and SPR23/2356 Determination of the Supervisor of Records (October 17, 2023). In my October 17th determination, I found that the City did not meet its burden in redacting the record under Exemptions (a) and (c) of the Public Records Law. The City responded on October 27, 2023. Unsatisfied with the response, the requestor petitioned this office and this appeal, SPR23/2613, 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 SPR23/2613 Page 2 November 14, 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 October 27th Response In its October 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, “[p]rivacy interests in medical information have been recognized in numerous contexts. For example, the Health Insurance Portability and Accountability Act of 1996 (HIPAA) precludes covered entities from disclosing protected health

Pamela L. Powers SPR23/2613 Page 3 November 14, 2023 information. The common law physician-patient privilege would preclude a medical provider from revealing protected health information.” 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. 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

Pamela L. Powers SPR23/2613 Page 4 November 14, 2023 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, “[b]ased upon the City Clerk’s review of the cause of death information contained in [a named individual]’s death certificate and considering the factors set forth in the PETA case… the Clerk has determined that the privacy interests of [a named individual] and his family are substantial, that those privacy interests are within the ambit of the types of privacy interests that were recognized in the PETA case, and that the public interest in [a named individual]’s cause of death is clearly outweighed by those privacy interests. In the view of the Clerk, the information sought constitutes intimate details that are highly personal in nature. To protect the private health information at issue in this matter, I have advised the City Clerk to provide no more detail about the balancing of interests she performed because she cannot do so without revealing the protected information at issue.” In camera inspection In order to facilitate a determination as to the applicability of the Exemptions (a) and (c) claims made by the City to redact the responsive record, the City must provide this office with an un-redacted copy of the record for in camera inspection. See 950 C.M.R. 32.08(4). After I complete my review of the record, I will return the record to the City’s custody and issue an opinion on the public or exempt nature of the record. The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Mass. Comm’n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c).

Pamela L. Powers SPR23/2613 Page 5 November 14, 2023 This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. Please be aware, any cover letter submitted to accompany the relevant records may be subject to disclosure. Order Accordingly, the City is ordered to provide this office with an un-redacted copy of the responsive record for in camera inspection without delay. Sincerely, Manza Arthur Supervisor of Records cc: Anonymous Requestor Alan Seewald, Esq.