Carmen Fabery v. Executive Office of Health & Human Services (SPR 20220448)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 10, 2022 SPR22/0448 Patricia M. Scanlan, Esq. Records Access Officer Executive Office of Health & Human Services 1 Ashburton Place, Room 1109 Boston, MA 02108 Dear Attorney Scanlan: I have received the petition of Carmen Fabery appealing the response of the Executive Office of Health & Human Services (Office/EOHHS) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 28, 2022, Ms. Fabery requested “[a]ll materials currently in possession, custody or control of EOHHS HR related to the ‘different process’ that was implemented in lieu of the exemption form, . . . that employees were required to complete . . . relating to the evaluation of my . . . submitted religious exemption as explained above. . . .” The office provided a response on February 14, 2022, denying access to responsive records pursuant to Exemption (b) of the Public Records Law. G. L. c. 4, § 7(26)(b). Unsatisfied with the Office’s response, Ms. Fabery petitioned this office and this appeal, SPR22/0448, was opened as a result. Purpose of request; identity of requestor Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Ms. Fabery’s purpose in making the request has no bearing on the public status of any existing responsive records. 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

Patricia M. Scanlan, Esq. SPR22/0448 Page 2 March 10, 2022 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. 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. 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 February 14th response In its February 14, 2022 response, the Office explains, “EOHHS follows Human Resources Division (HRD) processes when evaluating a request for a religious exemption to the vaccine mandate. Documentation containing the interactive process implemented when evaluating the request and final determination is exempt from disclosure pursuant to G.L. c. 4, §7(26)(b) (Exemption B). Exemption B exempts from public disclosure records that ‘relate[] solely to internal personnel rules and practices of the government unit.’ Specifically, the documentation relates solely to personnel rules and practices for implementing the COVID-19 vaccination requirement for state employees set forth in Executive Order No. 595. The documentation is internal and has not been otherwise released. EOHHS withholds the documentation as its disclosure would inhibit the ‘proper performance of necessary governmental functions.’ G.L. c. 4, §7(26)(b).” 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 government 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.

Patricia M. Scanlan, Esq. SPR22/0448 Page 3 March 10, 2022 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 G-lobe New-spaper Co-. v. Bosto-n Retirem-ent Bd., 388 Mass. 427, 432 (1983) (Massachusetts Public Records Law modeled on federal Freedom of Information Act). The Office states that it withheld the responsive records because, “. . . its disclosure would inhibit the ‘proper performance of necessary governmental functions.’” However, the Office did not provide supporting information to demonstrate how disclosure of this information would hinder the proper performance of the Office’s necessary government function.” The Office must clarify this matter. Conclusion Accordingly, the Office is ordered to provide Ms. Fabery 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: Carmen Fabery