Carolyn Wagner v. Executive Office of Health & Human Services (SPR 20232957)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 11, 2023 SPR23/2957 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. Previous appeal This request was the subject of a previous appeal. See SPR23/2798 Determination of the Supervisor of Records (December 4, 2023). In the December 4th determination, I ordered the Office to provide an estimated date as to when it intends to provide the records. The Office 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

Belinda Bernard SPR23/2957 Page 2 December 11, 2023 provided a response on November 24, 2023. Unsatisfied with the response, Ms. Wagner petitioned this office and this appeal, SPR23/2957, 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(b)(iv); 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). 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 Office’s November 24th response In its November 24, 2023 response, the Office provided Ms. Wagner with records responsive to Item 3 of the request. The Office withheld records responsive to Items 1 and 2 of the request in their entirety. The Office cites Exemptions (a), (b) and (c) of the Public Records Law to withhold the responsive records. G. L. c. 4, § 7(26)(a), (b), (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 Att’y Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977).

Belinda Bernard SPR23/2957 Page 3 December 11, 2023 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. Under Exemption (a), the Office cites the Massachusetts Fair Information Practices Act (“FIPA”) to withhold the requested records from disclosure. In its response, the Office argues that it is “prohibited from disclosing the personal and medical information appearing in the records because it constitutes personal data protected from disclosure pursuant to G.L. c. 66A.” The Office is reminded that FIPA and the Public Records Law are to be construed to work together consistent with the legislative purpose. 32 Op. Att’y Gen. 157, 160 (May 18, 1977). FIPA cannot provide a basis for withholding the requested information unless the records fall within a statutory exemption to the definition of public records. See Allen v. Holyoke Hosp., 398 Mass. 372, 379 (1986) (stating that “determining whether the record sought is protected by FIPA depends on whether the record is a public record pursuant to G. L. c. 4, § 7 Twenty-sixth, and subject to the disclosure provisions of G. L. c. 66A”). FIPA, by itself, cannot justify withholding information. A custodian must first specifically explain how the withheld information is exempt from the Public Records Law. Once a record is found to be exempt from the definition of public records, FIPA may also operate to restrict disclosure. 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

Belinda Bernard SPR23/2957 Page 4 December 11, 2023 agency”); see also Globe Newspaper Co. v. Boston Ret. Bd., 388 Mass. 427, 432 (1983) (Massachusetts Public Records Law modeled on federal Freedom of Information Act). 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). Citing Exemption (b), the Office states the following: Specifically, the requested documentation relates solely to personnel rules and practices for implementing the COVID-19 vaccination requirements for state employees, and the reasonable accommodation process. The documentation is internal and has not been otherwise released. See Supervisor of Records Decision, SPR22/2637 (March 31, 2023). EOHHS withholds the documentation because its disclosure would inhibit the ‘proper performance of necessary governmental functions’ as required by Exemption (b), because it would undermine the integrity of the reasonable accommodation process. Allowing a public preview of the questions a Diversity Officer/ADA Coordinator may ask and the information to be considered when approving or denying a vaccine exemption or similar reasonable accommodation 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. See Supervisor of Records Decision, SPR22/2637 (March 31, 2023). Further, 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 records could be used by other individuals to disingenuously tailor their answers to prevent an otherwise correct denial. To operate effectively and fairly in analyzing requests for religious or disability- related reasonable accommodations, including rules that may apply to vaccination requirements for certain state employees, the Commonwealth of Massachusetts requires the process to remain interactive and genuine. See Supervisor of Records Decision, SPR22/2637 (March 31, 2023).

Belinda Bernard SPR23/2957 Page 5 December 11, 2023 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). 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) (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. Citing Exemption (c), the Office states the following: Medical information appearing is categorically exempt under Exemption (c). If medical information were not categorically exempt, it would be redacted as private information. The release of an individual’s medical or religious beliefs would constitute an unwarranted invasion of an individual’s privacy interests that is not outweighed by the public interest in disclosure.

Belinda Bernard SPR23/2957 Page 6 December 11, 2023 Based on the Office’s response, I find that the Office has met its burden to withhold the requested records from disclosure under Exemption (b) of the Public Records Law. Consequently, I decline to opine on the applicability of Exemption (c) at this time. Conclusion Accordingly, I will now consider this administrative appeal closed. If Ms. Wagner is not satisfied with the resolution of this administrative appeal, she is advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66 § 10(A)(c). Sincerely, Manza Arthur Supervisor of Records cc: Carolyn Wagner