(Cross-posted from The COFAR Blog)
In what we see as a win for the public’s right to know, the state’s Supervisor of Public Records has concluded that the Department of Public Health went too far in redacting virtually an entire report on an intellectually disabled man who died in February 2012 after he was reportedly sent home twice by Lowell General Hospital.
The September 21, 2015 decision by Public Records Supervisor Shawn Williams was issued in response to an appeal filed by COFAR after the DPH had sent us a report in May that was virtually unreadable because just about everything in it had been whited out. Williams ordered DPH to provide us with “a new redacted copy” of the report within 10 days, along with a written explanation regarding any portion the Department still considers to be exempt from disclosure.
Last month, the Public Records Division reviewed an unredacted version of the report in camera to determine whether DPH was justified in the wholesale redactions based on a claim that the report contained medical information that might violate the deceased man’s privacy.
Williams stated in his Sept. 21 decision that “generally, medical information will always be of a sufficiently personal nature to warrant exemption” from the Public Records Law. The decision also stated that even though the individual is deceased, “an individual’s privacy interest in medical information survives death.”
However, even given that exemption, Williams said DPH “provided no explanation as to why it could not redact portions (of the report) that specifically identify the individual to whom the medical information relates.” DPH also redacted portions of the report “describing the actions of others who are not the person to whom the medical exemption would apply,” Williams stated.
Williams concluded that “…other than portions of the report that specifically identify a person, the Department (DPH) has failed to satisfy its burden under the law to merit nondisclosure of such significant portions of the narrative.”
The Public Records Supervisor’s decision pointed out that COFAR was willing to accept a redacted version of the report that did not reveal the individual’s name or medical information that might violate his privacy. Williams also noted our complaint that it was impossible to tell from the redacted report whether DPH had examined the hospital’s policies for treating people with developmental disabilities, or whether the report contained any recommendations regarding hospital policies and procedures.
We have previously reported that the 51-year-old man had been having difficulty breathing and was sweating when he was taken to the hospital on both February 6 and 7 in 2012. On both occasions, he was sent back by the hospital to the group home in which he was living with no significant treatment. He died, apparently en route to the hospital, after staff in his group home called an ambulance for the third time on the afternoon of February 7.
The cause of death was listed on the death certificate on file in the City of Lowell as acute respiratory failure and aspiration pneumonia, which can indicate choking. A death report form filed with the Disabled Persons Protection Commission stated that the man died after experiencing cardiac arrest.
The DPPC referred the case of the man’s death to the DPH, apparently because an allegation about improper care in the case involved the hospital and not the man’s group home, which is operated by the Department of Developmental Services. Williams’ ruling still seems to leave some room for DPH to redact anything that they contend could identify the deceased resident; but they will have to include more information in the report than they did in the document they previously provided to us.
Secretary of State Bill Galvin, whose office oversees the Public Records Division, has come in for criticism lately for his allegedly lackluster enforcement of the Public Records Law in Massachusetts. But in this case at least, we have to commend Galvin and his staff for the work they’ve done.
