Laura H. Ortiz v. Massachusetts Rehabilitation Commission (SPR 20222637)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 30, 2022 SPR22/2637 Molly Karp, Esq. Primary Records Access Officer Massachusetts Rehabilitation Commission 600 Washington Street Boston, MA 02111 Dear Attorney Karp: I have received the petition of Laura Ortiz appealing the response of the Massachusetts Rehabilitation Commission (Commission/MRC) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 31, 2022, Ms. Ortiz requested the following: Exemptions (Religion and Medical), state employees and vaccination (December 1, 2021 present), copies of any records related to or responsive to: a. Digital tools, computer assisted technology, software programs or other that assisted MRC or other state agencies in more efficiently denying appeals of the vaccine mandate instead of focusing on the merits of each individual case, or assisted with rejecting applications and appeals b. Memorandums or other Executive Orders that assisted MRC or other state agencies in more efficiently denying appeals of the vaccine mandate instead of focusing on the merits of each individual case, or assisted with rejecting applications and appeals c. Any directives, memorandums or other from the Office of the Attorney General or EOTSS given to MRC or other state agencies that relate to digital tools, computer assisted technology, software programs or other memorandums that assisted MRC or other state agencies in more efficiently denying appeals of the vaccine mandate instead of focusing on the merits of each individual case or assisted with rejecting applications and appeals. The Commission responded on November14, 2022, denying the request. Unsatisfied with the Commission’s response, Ms. Ortiz appealed, and this case was opened as a result. 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

Molly Karp, Esq. SPR22/2637 Page 2 November 30, 2022 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. Att’y 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 Commission’s November 14th Response In its November 14, 2022 response, the Commission cites Exemption (b) of the Public Records Law for withholding responsive records. See 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 governmental 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. 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 Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 432 (1983) (Massachusetts Public Records Law modeled on federal Freedom of Information Act).

Molly Karp, Esq. SPR22/2637 Page 3 November 30, 2022 The courts have interpreted the federal exemption to allow withholding of materials that, if released, could cause agency rules or regulations to be circumvented. See Fiumara v. Higgins, 572 F. Supp. 1093, 1102 (1983) (internal codes are exempt where disclosure may enable outsiders to circumvent agency functions). The analysis employed by the federal courts requires a two-pronged test. Material is exempt if it is predominantly used internally and if disclosed would significantly risk circumvention of agency regulations and statutes. See Marrera v. United States Dep’t of Justice, 622 F. Supp. 51, 55 (D.D.C. 1985) (Bureau of Prisons access and identity codes were properly withheld as materials in which the public would have no legitimate interest or which would compromise security if disclosed). In its November 14th response, under Exemption (b), the Commission argues the following: MRC is withholding responsive material used in the interactive process for analyzing and evaluating an employee’s request for a religious exemption to the vaccine mandate. The withheld materials describe in detail how an evaluator should analyze the request, including which questions to ask and which facts may result in an approval or denial. ... Specifically, the materials requested relate solely to personnel rules and practices for implementing the COVID-19 vaccination requirement for state employees set forth in Executive Order No. 595. The materials are internal to the Commonwealth and MRC and have not been released publicly. Disclosure of this documentation would inhibit the “proper performance of necessary governmental functions” as it would undermine the integrity of MRC’s exemption analyses process. Allowing a public preview of the questions a Diversity Officer may ask, and the type of information considered, when approving or denying a request may result in scripted responses from future requestors. The dialogue with a requestor is intended to be spontaneous and interactive. If this documentation is released publicly, it would prevent the fluid and genuine dialogue required to arrive at a fair determination. Similarly, this material, if disseminated, could taint the exemption request and evaluation process, particularly the evaluation of the sincerity of a religious belief. If disclosed publicly, the requested materials could be used by other individuals to disingenuously tailor their answers to prevent an otherwise anticipated denial. To operate effectively and fairly in implementing the COVID-19 vaccination requirement for state employees, set forth in Executive Order No. 595, the Commonwealth requires the process to remain interactive and genuine. In Camera Inspection In order to facilitate a determination as to the applicability of the Exemption (b) claim made by the Commission to withhold responsive records, the Commission must provide this office with un-redacted copies of the responsive records for in camera inspection. See 950

Molly Karp, Esq. SPR22/2637 Page 4 November 30, 2022 C.M.R. 32.08(4). After I complete my review of the records, I will return the records to the Commission’s custody and issue an opinion on the public or exempt nature of the records. 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. Mass. 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 Commission is ordered to provide this office with un-redacted copies of the responsive records for in camera inspection without delay. Sincerely, Manza Arthur Supervisor of Records cc: Laura Ortiz