Catherine Foster v. Department of Public Health (SPR 20241196)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 6, 2024 SPR24/1196 Helen Rush-Lloyd Records Access Officer Department of Public Health 250 Washington Street, 2nd Floor Boston, MA 02108 Dear Ms. Rush-Lloyd: I have received the petition of Catherine Foster appealing the response of the Department of Public Health (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 26, 2024, Ms. Foster requested, “[a]ll written complaints and oral complaints reduced to notes, electronic communications, or other sources of writings made to DPH regarding Adams Ambulance Service from January 2022 through the current time.” Prior appeal The requested records were the subject of a prior appeal. See SPR2/0536 Determination of the Supervisor of Records (March 5, 2024). In my March 5th Determination, It was my understanding that the Department intended to provide a further response to Ms. Foster. The Department responded on April 11, 2024. Unsatisfied with the response, Ms. Foster petitioned this office and this appeal, SPR24/1196, 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 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 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

Helen Rush-Lloyd SPR24/1196 Page 2 May 6, 2024 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 Department’s April 11th response In its April 11, 2024 response, the Department provided 42 pages of requested records and cited Exemption (c) and the Fair Information Practices Act, G. L. c. § 66A (“FIPA”) to redact the records. The Department also cited Exemption (f) of the Public Records Law to withhold certain records. 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). 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. 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). When analyzing a privacy claim, there is 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.

Helen Rush-Lloyd SPR24/1196 Page 3 May 6, 2024 In its response, the Department asserts, “[o]n March 19, 2024, the Department sent its first supplemental response and enclosed records (42 pages in total) that were responsive to your request. Those records contained certain information, including patients’ names, personal identifiers, and medical information, as well as the personal contact information of staff member that were exempt from disclosure and redacted pursuant to G. L. c. 4, § 7(26)(c). The redacted information also constituted personal data, which is protected from disclosure by the Fair Information Practices Act, G. L. c. 66A (“FIPA”). If DPH 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). Therefore, this information was also exempt pursuant to G. L. c. 4, § 7(26)(a) because it is exempt by statute or necessary implication thereof, including FIPA and G. L. c. 4, § 7(26)(c), as outlined above.” With the exception of medical and patient information that may be redacted, it is unclear what personal identifiers and contact information were redacted from the records or how disclosure would result in personal embarrassment to an individual of normal sensibilities. Also, the Department must clarify whether the information constitute intimate details of a highly personal nature. It is also not clear whether this information is available from other sources. PETA, 477 Mass. at 292. Further, the Department did not provide information with respect to examining whether the public interest in obtaining the requested information outweighs the seriousness of any invasion of privacy. Id. Exemption (f) Exemption (f) permits the withholding of: investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest. G. L. c. 4, § 7(26)(f). A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 371 Mass. 59, 62 (1976). Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Att’y Gen., 52 Mass. App. Ct. 244, 248 (2001); Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 290 n.18 (1979). Exemption (f) invites a “case-by- case consideration” of whether disclosure “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” See Reinstein, 378 Mass. at 289-90.

Helen Rush-Lloyd SPR24/1196 Page 4 May 6, 2024 As a matter of course, witness provided information is essential to efficient and effective law enforcement. This exemption is intended to allow investigative officials to provide an assurance of confidentiality to private citizens so that they will speak openly and voluntarily about matters. Bougas, 371 Mass at 62. Any information contained in a witness statement, which if disclosed would create a grave risk of directly or indirectly identifying the voluntary witness is subject to withholding Globe Newspaper Co., 388 Mass. at 438. The disclosure of the names and other identifying information of victims, complainants and voluntary witnesses may deter other potential witnesses and citizens from providing information to law enforcement agencies in future investigations. Therefore, Exemption (f) will allow the withholding of the name and identifying details of any victims, complainants and voluntary witnesses, and where the individuals can be indirectly identified even with redaction. In its response, the Department asserted “...the Department also withheld records (47 pages in total), pursuant to Exemption (f), as they were related to an open and ongoing investigation... To clarify, complaint(s) about Adams Ambulance are included in the 47 pages that are being withheld because they are related to an open and ongoing investigation. Please be advised that the Department has not identified any further records that are responsive to this most recent request.” Although the Department claims the withheld records relate to an open and ongoing investigation, it is unclear how the records in their entirety can be withheld under Exemption (f). It is unclear from the Department’s response whether the records contain confidential investigative techniques that would be prejudicial to the ongoing investigation if disclosed. The Department did not demonstrate how disclosure of any segregable portion of the responsive records “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest[,]” as required under Exemption (f). See Reinstein, 378 Mass. at 289-90 (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Conclusion Accordingly, the Department is ordered to provide Ms. Foster 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. Foster may appeal the substantive nature of the Department’s response within ninety days. See 950 C.M.R. 32.08(1).

Helen Rush-Lloyd SPR24/1196 Page 5 May 6, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Catherine Foster