Carolyn Wagner v. Human Resources Division (SPR 20230749)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 1, 2023 SPR23/0749 Michele Heffernan, Esq. General Counsel Human Resources Division One Ashburton Place Boston, MA 02108 Dear Attorney Heffernan: I have received the petition of Carolyn Wagner appealing the response of the Human Resources Division (Division) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 4, 2023, Ms. Wagner requested, “copies of any forms that workers in the Executive Branch filled out requesting religious or medical exemption for the COVID-19 vaccination for the executive branch, including the ruling on whether that waiver was granted or rejected.” On March 15, 2023, the Division responded and stated it was withholding the requested records pursuant to Exemptions (a) and (c) of the Public Records Law. G. L. c. 4, § 7(26)(a), (c). Unsatisfied with the Division’s response, Ms. Wagner petitioned this office and this appeal, SPR23/0749, 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(d)(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…”); 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. SPR23/0749 Page 2 May 1, 2023 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. The Division’s March 15th Response In the Division’s March 15, 2023 response, the Division cites the Americans with Disabilities Act as it operates through Exemption (a) and Exemption (c) of the Public Records Law to withhold the responsive records. G. L. c. 4, § 7(26)(a), (c). Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, §7(26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public's right to inspect records under the Public Records Law is restricted. See Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 154 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-546 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either "shall not be a public record," "shall be kept confidential" or "shall not be subject to the disclosure provision of the Public Records Law." The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. In its response, the Division cites the Americans with Disabilities Act See 29 C.F.R. § 1630.14(4) as the basis for withholding the records. The regulation states in pertinent part, Information obtained under paragraph (d) of this section regarding the medical condition or history of any employee shall be collected and maintained on separate forms and in separate medical files and be treated as a confidential medical record …. 29 C.F.R. § 1630.14(4).

Michele Heffernan, Esq. SPR23/0749 Page 3 May 1, 2023 Based upon the Division’s response and review of the file, it is unclear as to how all the requested records are restricted under 29 C.F.R. § 1630.14(4), as it operates through Exemption (a). Exemption (c) Exemption (c) applies to: personnel and medical files or information and any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy; provided, however, that this subclause shall not apply to records related to a law enforcement misconduct investigation G. L. c. 4, § 7(26)(c). Medical information that is of a personal nature and relates to a specifically named individual is exempt from disclosure. Brogan v. School Comm. of Westport, 401 Mass. 306, 308 (1987); Globe Newspaper Co. v. Boston Ret. Bd., 388 Mass. 427, 438 (1983). Generally, medical information is sufficiently personal to warrant exemption. Id. at 432-34. There is a strong public policy in Massachusetts that favors confidentiality as to medical data about a person’s body. Globe Newspaper Co. v. Chief Med. Exam’r, 404 Mass. 132, 135 (1987). Massachusetts courts have found that “core categories of personnel information that are ‘useful in making employment decisions regarding an employee’” may be withheld from disclosure. Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 58 Mass. App. Ct. 1, 5 (2003). For example, “employment applications, employee work evaluations, disciplinary documentation, and promotion, demotion, or termination information pertaining to a particular employee,” may be withheld pursuant to Exemption (c). Wakefield Teachers Ass’n v. School Comm., 431 Mass. 792, 798 (2000). The courts have also discussed specific categories of records that may be redacted under Exemption (c). See Globe Newspaper Co. v. Exec. Office of Admin. and Fin., Suffolk Sup. No. 11-01184-A (June 14, 2013). Analysis under Exemption (c) is subjective in nature and requires a balancing of the public's right to know against the relevant privacy interests at stake. Torres v. Att’y Gen., 391 Mass. 1, 9 (1984); Att’y Gen. v. Assistant Comm'r of Real Property Dep't., 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case by case basis. There are factors to consider when assessing the weight of the privacy interest at stake: (1) whether disclosure would result in personal embarrassment to an individual of normal sensibilities; (2) whether the materials sought contain intimate details of a highly personal nature; and (3) whether the same information is available from other sources. See People for the Ethical Treatment of Animals (PETA) v. Dep't of Agric. Res., 477 Mass. 280, 292 (2017). When analyzing a privacy claim, there is a balancing test which provides that where the public interest in obtaining the requested information substantially outweighs the seriousness of

Michele Heffernan, Esq. SPR23/0749 Page 4 May 1, 2023 any invasion of privacy, the private interest in preventing disclosure must yield. PETA, 477 Mass. at 291. The public has a recognized interest in knowing whether public servants are carrying out their duties in a law abiding and efficient manner. Id. at 292. In its response, the Division contends: Requests for exemptions based on medical contraindication and/or disability are medical files …which actually include notes from medical professionals—and therefore [are] absolutely exempt from disclosure. Similarly, requests for exemptions based on a sincerely held religious belief invoke individuals’ past practices with respect to vaccines and other medication in the context of their articulated religious creed or belief. These fall squarely within the personnel and medical files or information absolute [sic] exemption. Further, the Division asserts: There is no question that the details provided by the employees requesting exemptions are intimate details of a highly personal nature. Describing a personal belief system and the journey that brought one to that belief system is both an intimate and highly personal experience. There is no question that the disclosure of these details would result in a personal embarrassment. There is no public right to know this information. Commonwealth employees who elected to apply for an exemption should not have to discover the details of their personal life published outside of the confidential, individualized assessment they experienced during the exemption process. Additionally, the Division argues: Redaction is not a satisfactory solution to this request. The requests were made in writing and there is no way to segregate the information. In addition, disclosing information with such personalized and specific facts could lead to the identification of the individual employees who have either been terminated or approved for a reasonable accommodation. To the extent the records contain medical or personal information of a specifically identified individual, the identifying information may be withheld. However, I find that the Division did not meet its burden to withhold the requested records in their entirety pursuant to Exemptions (a) or (c). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Conclusion Accordingly, the Division is ordered to provide Ms. Wagner with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten business days. A copy of any such response must be provided to this

Michele Heffernan, Esq. SPR23/0749 Page 5 May 1, 2023 office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Carolyn Wagner