Anonymous Requestor v. Northampton, City of - City Clerk (SPR 20240621)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 13, 2024 SPR24/0621 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); SPR23/2613 Determinations of the Supervisor of Records (November 14, 2023 and December 19, 2023) and SPR24/0168 Determination of the Supervisor of Records (February 2, 2023). In my February 2nd determination, I found that the City did not meet its burden of specificity in redacting the cause of death under Exemption (c). On February 8, 2024, the City responded with a further explanation for redacting the cause of death pursuant to Exemption (c). Unsatisfied with the City’s response, the requestor petitioned this office and this appeal, SPR24/0621, 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 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 SPR24/0621 Page 2 March 13, 2024 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 February 8th Response In its February 8, 2024 response, the City cited Exemption (c) of the Public Records Law to redact the cause of death 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). 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.

Pamela L. Powers SPR24/0621 Page 3 March 13, 2024 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 February 8, 2024 response, the City states the following: Based 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 [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. Privacy interests in medical information have been recognized in numerous contexts… The common law physician-patient privilege would preclude a medical provider from revealing protected health information. Courts in other jurisdictions have held that cause of death information contained in a death certificate is private and must be redacted before the certificate is publicly disseminated. E.g., Walsh v. Ohio Department of Public Health, 183 NE3d 1281 (Ohio 2022); Schoeneweis v. Hamner, 221 P.3d 48 (Ariz. App. 2009). In her Order of February 2, 2024, the Supervisor of Public Records suggests that “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 fact that the disease or cause of death must be included in a death certificate does not speak to whether such information must in every case be disseminated publicly. First, the statute specifically states that the collection of that information must be “defined so that it can be classified under the international classification of causes of death.” Had the legislature also intended the § 1-mandated information to override the privacy exemption contained in the public records law, it would have done so expressly. The legislature did no such thing, and, in fact, the statute does not address the issue of

Pamela L. Powers SPR24/0621 Page 4 March 13, 2024 public records in any way. Rather, the cause of death information contained in a death certificate is subject to the same balancing analysis under exemption (c) as any other record held by the city clerk. As stated above, the city clerk has engaged in the balancing of interests that the subsection (c) privacy exemption imposes on a records access officer, and nothing in c. 46, § 1 changes her conclusion. Upon review, 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, where the content of death certificates, including “disease or cause of death” is prescribed by statute, I find that the City must produce the requested record with the cause of death unredacted. See G. L. c. 46, § 1. Order 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 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. Sincerely, Manza Arthur Supervisor of Records cc: Anonymous Requestor Alan Seewald, Esq.