Carolyn Wagner v. Executive Office of Health & Human Services (SPR 20232798)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 4, 2023 SPR23/2798 Berlinda Bernard Records Access Officer Executive Office of Health and Human Services One Ashburton Place, 3rd Floor Boston, MA 02108 Dear Ms. Bernard: I have received the petition of Carolyn Wagner appealing the response of the Executive Office of Health & Human Services (Office) to a request for public records. See G. L. c. 66 § 10A; see also 950 C.M.R. 32.08(1). On October 18, 2023, Ms. Wagner requested the following records: [1.] [C]opies of all of the Covid-19 vaccine mandate (Governor Baker’s Executive Order 595) exemption request forms that state workers completed and submitted to their designated ADA Officers and/or managers or agency heads. [2.] [T]he determination forms (e.g., forms or sections of forms thereof that were completed by state employees and contain the state’s determination regarding the exemption request, whether it was denied or approved, and any reasons given as to why – some of these were called ‘Interactive Dialog Documentation’ forms or similarly named)… that would have been submitted between August 15, 2021 and May 12, 2023. [3.] [C]opies of any and all EOHHS, HRD, and EOHHS/HRD ADA records within the same timeframe that list the criteria that the ADA Coordinators and EOHHS used to determine whether or not individuals seeking medical and religious exemption should be exempted. The Office provided a response on November 9, 2023. Unsatisfied with the response, Ms. Wagner petitioned this office and this appeal, SPR23/2798, 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

Berlinda Bernard SPR23/2798 Page 2 December 4, 2023 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 town 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) (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). Current appeal In her appeal, Ms. Wagner states that “the EOHHS has not yet responded.” The Office’s November 9th response In its response, the Office states that it “continues to process [Ms. Wagner]’s request and hopes to issue a response by November 16, 2023.” Timeframe for responding to a request G. L. c. 66, § 10(b) provides, in pertinent part, that if the magnitude or difficulty of the request unduly burdens the other responsibilities of the agency or municipality such that the agency or municipality cannot provide records within 10 business days, the agency or municipality must inform the requestor in writing within 10 business days. With respect to the timeframe to produce responsive records, the written response shall: identify a reasonable timeframe in which the agency or municipality shall produce the public records sought; provided, that ... for a municipality the timeframe shall not exceed 25 business days following the initial receipt of the request for public records; and provided further, that the requestor may voluntarily agree to a response date beyond the timeframes set forth herein. G. L. c. 66, § 10(b)(vi). Where Ms. Wagner’s request was submitted on October 18, 2023, I find the Office has not met its burden in responding to the request in accordance with G. L. c. 66, § 10(b)(vi).

Berlinda Bernard SPR23/2798 Page 3 December 4, 2023 Consequently, I find the Office must provide an estimated date as to when it intends to complete the search and provide the responsive records. See G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). To the extent possible, the Office must provide responsive records on a rolling basis. Conclusion Accordingly, the Office 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 (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: Carolyn Wagner