Colman Herman v. Office of the Chief Medical Examiner (SPR 20211834)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 9, 2021 SPR21/1834 Eric B. Hogberg, Esq. General Counsel Office of the Chief Medical Examiner Commonwealth of Massachusetts 720 Albany Street Boston, MA 02118 Dear Attorney Hogberg: I have received the petition of Colman Herman appealing the response of the Office of the Chief Medical Examiner (Office) to a request for public records. G. L. c. 66 § 10A; see also 950 C.M.R. 32.08(1). On March 26, 2021, Mr. Herman requested “…copies of any and all communications related to the workers in the office of the chief medical examiner getting the COVID-19 vaccine.” Previous Appeals This request was the subject of previous appeals. See SPR21/0569 Determination of the Supervisor of Records (March 23, 2021); SPR21/1252 Determination of the Supervisor of Records (June 1, 2021). On July 23, 2021, the Office provided a response. Unsatisfied with the Office’s response, Mr. Herman petitioned this office and this appeal, SPR21/1834, 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 town 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. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of 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

Eric B. Hogberg, Esq. SPR21/1834 Page 2 August 9, 2021 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 Office’s July 23rd Response In the July 23, 2021 response, the Office cited Exemptions (a), (b), (c), and (d) for either redacting or withholding responsive records. In his appeal, Mr. Herman stated, “[t]he claim of exemption (d) fails because it lacks the specificity required by the public records law.” In addition, Mr. Herman indicated, “[c]ell phone numbers were redacted from the responsive records. It is not clear, however, if the redacted cell phone numbers are associated with cell phones issued by the state or with privately-owned cell phones. If it is the former, the cell phone numbers are public records and must be produced.” Exemption (b) Exemption (b) permits the withholding of records that are: Related solely to internal personnel rules and practices of the government unit, provided however, that such records shall be withheld only to the extent that proper performance of necessary governmental functions requires such withholding G. L. c. 4, § 7(26)(b). There are no authoritative Massachusetts decisions interpreting Exemption (b). The general purpose of the cognate federal exemption is to relieve agencies of the burden of assembling and maintaining for public inspection materials in which the public cannot reasonably be expected to have an interest. See Dep’t of the Air Force v. Rose, 425 U.S. 352, 362-70 (1976) (interpreting the federal Freedom of Information Act, which provides an exemption for records which are “related solely to the internal personnel rules and practices of an agency”); see also Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 432 (1983) ------------------------------------ (Massachusetts Public Records Law modeled on federal Freedom of Information Act). The courts have interpreted the federal exemption to allow withholding of materials that, if released, could cause agency rules or regulations to be circumvented. See Fiumara v. Higgins, 572 F. Supp. 1093, 1102 (1983) (internal codes are exempt where disclosure may enable outsiders to circumvent agency functions). The analysis employed by the federal courts requires a two-pronged test. Material is exempt if it is predominantly used internally and if disclosed would significantly risk circumvention of agency regulations and statutes. See Marrera v. United States Dep’t of Justice, 622 F. Supp. 51, 55 (D.D.C. 1985) (Bureau of Prisons access and identity

Eric B. Hogberg, Esq. SPR21/1834 Page 3 August 9, 2021 codes were properly withheld as materials in which the public would have no legitimate interest or which would compromise security if disclosed). The Office’s July 23rd response explained, “throughout the enclosed records, the OCME has redacted state employee’s cell phone numbers pursuant to G.L. c. 4, § 7, cl. 26 (b) which exempts records that relate solely to internal personnel rules and practices of the government unit, to the extent that proper performance of necessary governmental functions requires such withholding. The OCME asserts that by disclosing this information, it would hinder these employees’ ability to properly perform their functions as government employees.” Based on the Office’s response, it is unclear how the “redacted state employee’s cell phone numbers” relate solely to internal personnel rules and practices of the government unit. Additionally, it is uncertain how disclosure of this record would hinder the proper performance of Office’s necessary government function. The Office must further clarify this. Exemption (d) Exemption (d) allows the withholding of: inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this subclause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based G. L. c. 4, § 7(26)(d). Exemption (d) is intended to avoid premature release of materials that could taint the deliberative process if disclosed. Its application is limited to recommendations on legal and policy matters found within an ongoing deliberative process. See Babets v. Sec’y of the Exec. Office of Human Servs., 403 Mass. 230, 237 n.8 (1988). Factual reports which are reasonably complete and inferences which can be drawn from factual investigations, even if labeled as opinions or conclusions, are not exempt as deliberative or policy making materials. G. L. c. 4, § 7(26)(d); see also Envtl. Protection Agency v. Mink, 410 U.S. 73, 89 (1973) (purely factual --------------------------- matters used in the development of government policy are subject to disclosure). Attorney Work Product The Supreme Judicial Court (SJC) opined on the status of attorney work product under Exemption (d) in DaRosa v. City of New Bedford, 471 Mass. 446 (2015). In DaRosa, the SJC concluded that “opinion” work product that was prepared in anticipation of litigation or for trial by or for a party or its representative falls within the scope of Exemption (d). Id. at 448. It also concluded that “fact” work product under Mass. R. Civ. P. 26(b)(3) that was prepared in anticipation of litigation or trial falls within the scope of Exemption (d) where it is not a reasonably completed study or report or, if it is reasonably completed, where it is interwoven with opinions or analysis leading to opinions. Id.

Eric B. Hogberg, Esq. SPR21/1834 Page 4 August 9, 2021 The Office explained in its July 23rd response, “that draft policy documents, specifically the drafts attached to the Batch 4 emails, have been withheld from public record as attorney work product and Exemption (d) – The Deliberative Process Exemption. Exemption D applies to inter- agency or intra-agency memoranda or letters relating to policy positions being developed by the agency. As these draft policy documents contain recommendations and changes relating to policy matters, as well as attorney opinions and recommendations, these records are being withheld.” Based on the Office’s response, I find that it has not met its burden to withhold the draft documents under as attorney work product and Exemption (d). In particular, the Office has not provided sufficient evidence to conclude that the policy determinations expressed in the responsive records are part of an ongoing decision-making process or are likely to recur in future, similar litigation. Lastly, the Office must clarify whether the withheld portions of the records contain any factual information that can be segregated from the responsive records, as Exemption (d) does not apply to such information. See Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (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). The Office must further clarify this. Records in existence The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). In light of the issues raised in Mr. Herman’s appeal regarding the existence of responsive records, I find it is unclear whether there are any more responsive records in existence. The Office must explain whether any additional responsive records are in existence or whether the records did not initially exist. See G. L. c. 66, § 10(a)(ii), (b)(ii). Conclusion Accordingly, the Office is ordered to provide Mr. Herman with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within five (5) 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. Sincerely, er JJA~~~- ~ ,wuw:,o.. · ~· Rebecca S. Murray Supervisor of Records cc: Colman Herman