Todd Wallack v. Human Resources Division (SPR 20220391)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 3, 2022 SPR22/0391 Michele Heffernan, Esq. General Counsel Human Resources Division 100 Cambridge Street, Suite 600 Boston, MA 02114 Dear Attorney Heffernan: I have received the petition of Todd Wallack of WBUR appealing the response of the Human Resources Division (Division) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 18, 2022, Mr. Wallack requested: “[c]opies of any forms that workers in the Executive Branch filled out requested religious or medical exemption for the COVID vaccination for the executive branch, including the ruling on whether that waiver was granted or rejected. Or alternatively, I would seek a database containing the same information in electronic form [and [a]ny statistics available on how people applied for exemptions and how many were granted.” Previous Appeals This request was the subject of previous appeals. See SPR22/0270 Determination of the Supervisor of Records (February 8, 2022) and SPR22/0325 Determination of the Supervisor of Records (February 17, 2022). The Division responded on February 16, 2022. Unsatisfied with the response, Mr. Wallack petitioned this office and this appeal, SPR22/0391, 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 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. 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 Heffernan, Esq. SPR22/0391 Page 2 March 3, 2022 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 Division’s February 16th Response In its February 16th response, the Division cites Exemptions (a) and (c) to withhold the requested records. In camera inspection In order to facilitate a determination as to the applicability of the Division’s claims to withhold the requested records, the Division must provide this office a representative sample of an un-redacted copy of the responsive records for in camera inspection. After I complete my review of the documents, I will return the records to your custody and issue an opinion on the public or exempt nature of the record. See 950 C.M.R. 32.08(4). 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. Massachusetts 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 Division is ordered to provide this office with an un-redacted copy of a representative sample of the requested records for in camera inspection without delay.

Michele Heffernan, Esq. SPR22/0391 Page 3 March 3, 2022 Sincerely, Rebecca S. Murray Supervisor of Records cc: Todd Wallack