Ronald Gardner v. Executive Office of Public Safety & Security (SPR 20220020)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 19, 2022 SPR22/0020 Michele M. Heffernan, Esq. General Counsel Executive Office of Public Safety & Security One Ashburton Place, Room 2133 Boston, MA 02108 Dear Attorney Heffernan: I have received the petition of Ronald Gardner appealing the response of the Executive Office of Public Safety & Security (Office) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 2, 2021, Mr. Gardner requested the following records: [1] The names and titles of all [personnel] assigned to the review committee in EOPSS to review all religious/medical exemptions which were submitted by state workers in order to comply with Governor Bakers Executive Order 595. [2] All training records of the above mentioned personal, specifically trainings involved with "judging a person’s sincerely held beliefs" and ADA accommodations. [3] All written or electronic (i.e. emails, memos, directives) records/correspondences of EOPSS staff pertaining to religious/medical exemptions and EO 595. Previous appeal This request was the subject of a previous appeal. See SPR21/3192 Determination of the Supervisor of Records (December 14, 2021). The Office responded on December 14, 2021. Unsatisfied with the response, Mr. Gardner petitioned this office and this appeal, SPR22/0020, 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

Michele M. Heffernan, Esq. SPR22/0020 Page 2 January 19, 2022 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. The Office’s December 14th response In its December 14th response, the Office cited Exemption (d) to withhold the requested records and stated that Mr. Gardner has “… litigation pending against the Commonwealth, [and] as such, public records request is not the appropriate vehicle information that may be subject to a discovery request.” In a telephone conversation between an Office representative and a staff attorney, the Office advised that Mr. Gardner has an appeal pending before the Civil Service Commission known as Ronald Gardner v. DOC docket number D1-21-236 and that the proceedings are related to the requested records. Active Administrative Proceeding 950 C.M.R. 32.08(2)(b) provides in pertinent part: the Supervisor may deny an appeal for, among other reasons if, in the opinion of the Supervisor: 1. the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation. In light of the pending matter, I decline to opine on this matter at this time. See 950 C.M.R. 32.08(2)(b). It should be noted that a change in the status of this action could impact the applicability of 950 C.M.R. 32.08(2)(b). Sincerely, Rebecca S. Murray Supervisor of Records cc: Ronald Gardner