Sam Whiting v. Department of Correction (SPR 20232860)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 11, 2023 SPR23/2860 Kate Silvia Communications Director Department of Correction Legal Division 70 Franklin Street, Suite 600 Boston, MA 02110 Dear Ms. Silvia: I have received the petition of Sam Whiting appealing the response of the Department of Correction (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 31, 2023, Mr. Whiting requested, “[a]ll documents granting any Department of Correction employee a medical, religious, or other accommodation to the COVID-19 vaccination requirement.” The Department provided a response on November 7, 2023. Unsatisfied with the Department’s response, Mr. Whiting petitioned this office and this appeal, SPR23/2860, 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…”); 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 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

Kate Silvia SPR23/2860 Page 2 December 11, 2023 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 Department’s November 7th Response In its November 7, 2023 response, the Department cited Exemption (c) of the Public Records Law to withhold the records. Exemption (c) Exemption (c) permits the withholding of: 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. Sch. 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. Examn’r, 404 Mass. 132, 135 (1987). 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 Prop. Dep’t, 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case by case basis. This exemption does not protect all data relating to specifically named individuals. Rather, 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). The types of personal information which this exemption is designed to protect includes: marital status, paternity, substance abuse, government assistance, family disputes and reputation. Id. at 292 n.13; see also Doe v. Registrar of Motor Vehicles, 26 Mass. App. Ct. 415, 427 (1988)

Kate Silvia SPR23/2860 Page 3 December 11, 2023 (holding that a motor vehicle licensee has a privacy interest in disclosure of his social security number). This exemption requires a balancing test which provides that where the public interest in obtaining the requested information substantially outweighs the seriousness of 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. Under Exemption (c), the Department states: An employee seeking a medical exemption to the COVID-19 vaccine mandate must, as part of that process, provide information about one’s medical health that is undoubtedly private and confidential. Similarly, an employee seeking a religious exemption to the COVID-19 vaccine mandate must provide religious information addressing a belief system that stems from a personal journey, experience, or tradition and involves intimate questions involving deep and imponderable matters. Additionally, [the Department]’s response to vaccine exemption requests, whether medical or religious, involves decisions concerning discipline, including termination, or reasonable accommodation based upon said exemption request. Information provided by Massachusetts Department of Correction employees in connection with medical and religious exemption requests to the COVID-19 vaccine mandate and [the Department]’s response to said requests involves highly personal, private, and intimate matters, the disclosure of which would result in personal embarrassment and a violation of an employee’s expectation of privacy. Additionally, providing redacted copies of the requested records would also not be sufficient. Providing any factual detail about why an employee was seeking an exemption to the COVID-19 vaccine mandate introduces that possibility that the employee could be identified. Additionally, exemption documents are frequently handwritten and a requestor could attempt to cross-reference any exemption document received with another handwritten document by an employee with a known identity to determine the identity of the employee requesting the vaccine exemption. To the extent that the records contain medical information of a specifically named individual, the Department may permissibly withhold those portions from disclosure. However, it is unclear how all the documents withheld constitute intimate details of a highly personal nature or how disclosure would result in personal embarrassment to an individual of normal sensibilities. It is additionally uncertain whether the information is available from other sources. PETA, 477 Mass. at 292. Also, the Department did not provide information with respect to the

Kate Silvia SPR23/2860 Page 4 December 11, 2023 balancing test which examines whether the public interest in obtaining the requested information outweighs the seriousness of any invasion of privacy. Further, the Department did not identify the records, categories of records or portions of records in its possession that it intends to withhold from disclosure under Exemption (c). The Department must clarify these matters. As a result, I find that the Department did not meet its burden of specificity in withholding the records, in their entirety, under Exemption (c) of the Public Records Law. Conclusion Accordingly, the Department is ordered to provide Mr. Whiting 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. Mr. Whiting may appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Sam Whiting