Peter Vickery, Esq. v. Executive Office of Health & Human Services (SPR 20221385)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 30, 2022 SPR22/1385 Shara Bedard Executive Office of Health & Human Services 1 Ashburton Place, Room 1109 Boston, MA 02108 Dear Ms. Bedard: I have received the petition of Peter Vickery, Esq., of Bobrowski & Vickery, LLC, appealing the response of the Executive Office of Health & Human Services (Office) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 13, 2022, Attorney Vickery requested the following: 1. Any requirement that employees of the Department of Developmental Services (DDS) receive vaccination against influenza; 2. Requests by DDS employees for religious exemption from any and all vaccine mandates and for reasonable accommodations in connection therewith; 3. The number of such requests for reasonable accommodations granted; and 4. The number of such requests for reasonable accommodations denied. On June 14, 2022, the Office provided a response, providing records responsive to Item 1, and directing Attorney Vickery to contact two different agencies for records responsive to Items 2 to 4. Unsatisfied with the Office’s response, Attorney Vickery petitioned this office and this appeal, SPR22/1385, 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). 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

Shara Bedard SPR22/1385 Page 2 June 30, 2022 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 June 14th response In its June 14, 2022 response, with respect to Items 2 through 4, the Office directed Attorney Vickery to contact the Human Resources Division or the Department of Developmental Services for records related to the COVID-19 vaccine or the flu vaccine, respectively. In a telephone conversation with a representative from the Office, it is my understanding that the Office does not possess additional responsive records. Please be advised, under the Public Records Law a custodian is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d). In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See 32 Op. Att’y Gen. 157, 165 (May 18, 1977). 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). Conclusion Accordingly, where the Office confirmed it does not possess responsive records, and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. Sincerely, Rebecca S. Murray Supervisor of Records cc: Peter Vickery, Esq.