Anonymous Requestor v. Northampton, City of - City Clerk (SPR 20240168)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 2, 2024 SPR24/0168 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 (“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 and in camera review This request was the subject of prior appeals and a subsequent in camera review. See SPR23/2043 Determination of the Supervisor of Records (September 12, 2023); SPR23/2356 Determination of the Supervisor of Records (October 17, 2023) and SPR23/2613 Determinations of the Supervisor of Records (November 14, 2023 and December 19, 2023). In my December 19th determination, I found that the City had not established how it is a covered entity as defined by HIPAA and that the City had not demonstrated how each of the redactions fall under Exemption (c). On December 21, 2023, the City responded with portions of the record un-redacted, and a further explanation for redactions pursuant to Exemption (c). Unsatisfied with the City’s response, the requestor petitioned this office and this appeal, SPR24/0168, 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 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 SPR24/0168 Page 2 Febraury 2, 2024 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(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 December 21st Response In its December 21, 2023 response, the City cited Exemption (c) of the Public Records Law to redact the cause of death and social security number on the death certificate. 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). 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, 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.

Pamela L. Powers SPR24/0168 Page 3 Febraury 2, 2024 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) in its previous response on October 27, 2023, the City stated, “[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.” When citing Exemption (c) in its December 21st response, 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 cited above, the Clerk has determined that the privacy interests of in [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 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.” Upon review, I find that the City has met its burden to redact the social security number under Exemption (c) of the Public Records Law. However, I find that the City has not met its burden of specificity in redacting the cause of death under Exemption (c) of the Public Records Law. Specifically, it is unclear how there is a privacy right in death certificates when the content of the death certificates, including “disease or cause of death” is prescribed by statute. G. L. c. 46, § 1. The City must clarify this matter.

Pamela L. Powers SPR24/0168 Page 4 Febraury 2, 2024 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 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 Alan Seewald, Esq.