Mary Schwager v. Department of Public Health (SPR 20212253)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 16, 2021 SPR21/2253 Helen Rush-Lloyd Records Access Officer Department of Public Health 250 Washington Street Boston, MA 02108 Dear Ms. Rush-Lloyd: I have received the petition of Mary Schwager, of WHDH-TV, appealing the response of the Department of Public Health (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 15, 2021, Ms. Schwager requested a breakdown of the types of vaccines people who had breakthrough Covid cases had. Previous appeal This request was the subject of a previous appeal. See SPR21/2197 Determination of the Supervisor of Records (September 2, 2021). SPR21/2197 was closed after the Department provided a response on September 1, 2021. Unsatisfied with the Department’s response, Ms. Schwager petitioned this office and this appeal, SPR21/2253, 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 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. 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 SPR21/2253 Page 2 September 16, 2021 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 September 1st response In its September 1, 2021 response, the Department claims the records are exempt from disclosure under Exemptions (a) and (d) of the Public Records Law. Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7(26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public’s right to inspect records under the Public Records Law is restricted. See Att’y Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either “shall not be a public record,” “shall be kept confidential” or “shall not be subject to the disclosure provision of the Public Records Law.” The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. Under Exemption (a), the Department asserts that it “. . . is prohibited from disclosing vaccine information contained in the Massachusetts Immunization Information System (MIIS) as a public record pursuant to G.L. c. 111, §24M. Accordingly, this information is exempt from disclosure pursuant to G. L. c. 4, § 7(26)(a) because it is exempt by statute.” G. L. c. 111, § 24M provides in relevant part: The department shall establish, maintain and operate a computerized immunization registry. The immunization registry shall record immunizations and immunization history with identifying information and shall include

Helen Rush-Lloyd SPR21/2253 Page 3 September 16, 2021 appropriate controls to protect the security of the system and the privacy of the information. . . Information contained in the immunization registry shall be confidential, shall not constitute a public record and shall not otherwise be disclosed except in accordance with this section. Such confidential information shall not be subject to subpoena or court order, and shall not be admissible as evidence in any action of any kind before a court, tribunal, agency, board or person. . . . G. L. c. 111, § 24M. Based on the Department’s response, it is unclear how the breakdown of the types of vaccines people who had breakthrough Covid cases had constitutes identifying information recorded in the computerized immunization registry. It is additionally uncertain how the statute permits the Department to withhold this information from disclosure. 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). Under Exemption (d), the Department states, “[w]ith regard to responsive records outside of the MIIS, the Department makes information about COVID-19 vaccine breakthrough cases publicly available on the Tuesday publication of the Daily COVID-19 Vaccine Report. . . . Records concerning the Department’s ongoing investigation of COVID-19 breakthrough cases as they may relate to specific COVID-19 vaccines are exempt from disclosure pursuant to G. L. c. 4, § 7 (26)(d) in order to protect the integrity of policies under development relating to this disease outbreak. For example, the Department has required long term care facility staff be vaccinated against COVID-19 pursuant to an emergency amendment to 105 CMR 150. The Department may, depending on the facts developed during the pendency of the investigation,

Helen Rush-Lloyd SPR21/2253 Page 4 September 16, 2021 develop policies to take other regulatory or administrative steps to reduce the incidence of this disease.” The Department’s response does not indicate what responsive records it is withholding from disclosure. The Department must identify what records it has in its possession, custody or control that are responsive to the request. See G. L. c. 66, § 10(b)(iv); 950 C.M.R. 2.06(3)(c)(4) (a records access officer must provide a written response that identifies the record, categories of records, or portions of the record it intends to withhold). It is additionally uncertain how disclosure of the requested information would taint the deliberative process. The Department is reminded that “reasonably completed factual studies or reports on which the development of such policy positions has been or may be based” are not permitted to be withheld. See G. L. c. 4, §7 (26)(d). Consequently, I find the Department has not met its burden to withhold the requested information from disclosure under Exemptions (a) and/or (d) of the Public Records Law. Conclusion Accordingly, the Department is ordered to provide Ms. Schwager 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 this response to this office at pre@sec.state.ma.us. Sincerely, Rebecca S. Murray Supervisor of Records cc: Mary Schwager