Peter Vickery, Esq. v. Massachusetts Commission Against Discrimination (SPR 20230558)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 5, 2023 SPR23/0558 Ruthy Barros Records Access Officer Massachusetts Commission Against Discrimination 1 Ashburton Place, Suite 601 Boston, MA 02108 Dear Ms. Barros: I have received the petition of Peter Vickery, Esq. of Bobrowski & Vickery, LLC appealing the response of the Massachusetts Commission Against Discrimination (Commission) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 9, 2023, Attorney Vickery stated, “I hereby request that you supply copies of any and all public records relating to: [1] Commission policies and procedures for investigating charges of discrimination arising out of, or connected in any way with, employer policies requiring employees to be injected with products advertised as “COVID-19 vaccines.” Please note: The term “COVID-19 vaccines” means the following:  The product called “Pfizer-BioNTech COVID-19 vaccine” formerly marketed as “COMIRNATY (COVID-19 Vaccine, mRNA)”;  The product called “Moderna COVID-19 Vaccine,” formerly marketed as SPIKEVAX (COVID-19 Vaccine, mRNA)”; and  The Johnson & Johnson product called “Janssen COVID-19 Vaccine;” [2] Commission policies and procedures for investing claims of religious discrimination arising out of, or connected in any way with, Executive Order 595, implementing a requirement for COVID-19 Vaccination for the Commonwealth’s Executive Department Employees; [3] The number of charges of discrimination filed since August 19, 2021, in which the complainant alleged discrimination on the basis of religion, including: a. The number of such charges that have resulted in a finding of probable cause, and 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

Ruthy Barros SPR23/0558 Page 2 April 5, 2023 b. The number of such charges that have resulted in a finding of lack of probable cause; [4] The number of charges of discrimination filed since August 19, 2021, in which the complainant alleged discrimination on the basis of religion by an executive branch agency arising out of, or connected in any way with, Executive Order 595, including: a. The number of such charges that have resulted in a finding of probable cause; and b. The number of such charges that have resulted in a finding of lack of probable cause; [5] The number of charges of discrimination filed since August 19, 2021, in which the complainant alleged discrimination on the basis of religion and the respondent was not an executive branch agency, arising out of or connected in any way with the complainant not being injected with products advertised as a COVID-19 vaccines, including: a. The number of such charges that have resulted in a finding of probable cause, and b. The number of such charges that have resulted in a finding of lack of probable cause. On March 22, 2023, the Commission provided a response to Attorney Vickery regarding his March 9th request. With regard to Attorney Vickery’s Items 1 and 2, the Commission’s response states, “[a] diligent search of Commission records did not reveal any documents responsive to your request.” In response to Attorney Vickery’s Items 4 and 5, the Commission provided a spreadsheet. As a result of the Commission’s production of the spreadsheet, Attorney Vickery petitioned the Supervisor of Records (Supervisor) on March 23rd, and this appeal was opened. In his March 23rd petition, Attorney Vickery asserts, “[t]he response [by the Commission] does not state the number of charges that have resulted in probable-cause findings (PC) or the number that have resulted in lack-of-probable-cause (LOPC) findings. I believe that such records exist.” 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

Ruthy Barros SPR23/0558 Page 3 April 5, 2023 order to withhold a requested record. G. L. c. 66, § 10(b)(iv) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based…”); 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). 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. Based on the Commission’s March 22nd response, it remains unclear if the Commission has the specific information and/or records that are responsive to Attorney Vickery’s Item 4(a and b) and Item 5(a) and (b), which requested “the number of charges that resulted in probable cause findings, and/or the number of such charges that have resulted in lack-of-probable cause. 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). In accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). Consequently, the Commission must clarify whether it possesses such records. Conclusion Accordingly, the Commission is ordered to provide Attorney Vickery, with a response to his request 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 the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Peter Vickery, Esq.