John Trask v. Department of Mental Health (SPR 20250656)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 17, 2025 SPR25/0656 Misael Garcia Records Access Officer Department of Mental Health 25 Staniford Street Boston, MA 02114 Dear Mr. Garcia: I have received the petition of John Trask appealing the response of the Department of Mental Health (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 6, 2024, Mr. Trask requested “[a]nonymized data showing the distribution of durations of mechanical restraints within state psychiatric hospitals … from January 2020 to the present[.]” Mr. Trask sought a further breakdown of the data for adolescent units (excluding months where policy prohibited use of mechanical restraints in adolescent units), adult continuing care units, and adult court evaluation units. Prior Appeals, Petition, and Reconsideration This request was the subject of prior appeals, a time petition, and a reconsideration. See SPR24/3154 Determination of the Supervisor of Records (December 5, 2024), SPR24/3395 Determination of the Supervisor of Records (December 24, 2024), and SPR25/0139 Determinations of the Supervisor of Records (January 22, 2025 and February 4, 2025). In my February 4th reconsideration determination, I found that the Department intended to provide Mr. Trask with a further response, and ordered that it do so within ten business days. The Department provided a response on March 7, 2025. Unsatisfied with the Department’s response, Mr. Trask petitioned this office and this appeal, SPR25/0656, 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

Misael Garcia SPR25/0656 Page 2 March 17, 2025 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(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Att’y 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 Department’s March 7th Response In its March 7, 2025 response, the Department informed Mr. Trask that it was withholding responsive records pursuant to Exemption (c) of the Public Records Law, to prevent the disclosure of individual medical information, and the unwarranted invasion of personal privacy. Current Appeal In his March 9, 2025 petition to this office, Mr. Trask contends that the disclosure of aggregated, anonymized data would not constitute the release of individual medical information, nor an invasion of privacy as contemplated by Exemption (c). 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.

Misael Garcia SPR25/0656 Page 3 March 17, 2025 Medical information that is of a personal nature and relates to a specifically named individual may be 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. Globe Newspaper Co., 338 Mass. 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). 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). 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. In its March 7th response, the Department stated: Pursuant to applicable public record and privacy laws, DMH is required to redact information from records requested under a public records request that would directly or in combination with other available information identify individuals served by mental health facilities or programs and/or constitute an unwarranted invasion of personal privacy. Because [Mr. Trask is] requesting records containing medical information regarding individuals that [he is] familiar with, DMH is unable to redact any such records sufficiently to prevent the re- identification of individual data subjects in the records. DMH is therefore unable to provide any records responsive to [the] request. G.L. c. 4, §7(26) (c) specifically provides that medical files or information are not public records. “The Legislature has made such medical files or information absolutely exempt…” Globe Newspaper Company v. Chief Medical Examiner, 404 Mass. 132, 135 (1989). “As a general rule, medical information will always be of a sufficiently personal nature to warrant exemption.” A Guide to the Massachusetts Public Records Law, Secretary of the Commonwealth, (2017), at 15. Even if this information was not categorically exempt, DMH withholds these records under Exemption (c)’s general privacy protections, as the information is of a highly personal nature, containing specific details which may identify individuals, and release of such information would constitute an unwarranted invasion of an individual’s privacy interests. The individuals’ privacy interests outweigh the public’s interest in disclosure.

Misael Garcia SPR25/0656 Page 4 March 17, 2025 In Camera Inspection In order to facilitate a determination as to the applicability of the Exemption (c) claim made by the Department to withhold responsive records, the Department must provide this office with un-redacted copies of the responsive records for in camera inspection. See 950 C.M.R. 32.08(4). After I complete my review of the records, I will return the records to the Department’s custody and issue an opinion on the public or exempt nature of the records. 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). 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 Department is ordered to provide this office with un-redacted copies of the responsive records for in camera inspection without delay. Sincerely, Manza Arthur Supervisor of Records cc: John Trask