Carolyn Wagner v. Department of Correction (SPR 20240518)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 1, 2024 SPR24/0518 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 Carolyn Wagner 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 22, 2023, Ms. Wagner requested the following: [1.] Records used by [the Department] that provide the standards used to evaluate exemption requests, whether religious or medical, in connection with the COVID- 19 vaccine requirement pursuant to Executive Order 595; and [2.] Records submitted by any Massachusetts Department of Correction employee seeking an exemption to the COVID-19 vaccine requirement and the Department’s response to each such employee’s vaccine exemption request. Previous Appeal These requests were the subject of a previous appeal. See SPR23/2735 Determination of the Supervisor of Records (November 28, 2023). In my November 28th determination, it was my understanding that the Department intended to provide a further response. The Department provided a response on December 7, 2023. Unsatisfied with the Department’s response, Ms. Wagner petitioned this office and this appeal, SPR24/0518, 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 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 SPR24/0518 Page 2 March 1, 2024 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 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. Current Appeal In her appeal, Ms. Wagner contends that “the records that [the Department] provided … do not satisfy the “standards” portion of [her] request… they are only the blank forms that the state provided to employees and ADA Reviewers/Managers to complete, and they do not contain specific standards/criteria as to what the EOHHS/HRD considered to be qualifying or disqualifying religious beliefs and medical disabilities in relation to E.O. 596, Governor Baker’s Covid-19 Vaccine Mandate… the Department of Correction’s criteria records should also be considered public record.” The Department’s December 7th Response In its December 7, 2024 response, the Department cited Exemption (b) of the Public Records Law, the attorney-client privilege, as well as attorney work product, to withhold records responsive to request 1. Regarding request 2, the Department cited Exemption (c) of the Public Records Law to withhold responsive records. Request Number 1 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).

Kate Silvia SPR24/0518 Page 3 March 1, 2024 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 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). Under Exemption (b), the Department states: Exemption (b) applies to your request because the materials that you seek in your request relate to the internal personnel rules and practices of the Department. More specifically, your request seeks materials in connection with the process used by the Department to evaluate requests for an exemption, whether medical or religious, to the vaccine mandate; and the information that the Department relied upon in approving or denying an exemption request. … The process of seeking an exemption to the vaccine mandate must be a collaborative, transparent, open, and honest process between employer and employee so that each party can determine the genuine needs at issue and arrive at a fair resolution. If an individual seeking an exemption to the vaccine mandate were aware of the evaluation process and the information that the Department relied upon in approving or denying an exemption request, including the questions he or she would be asked during this evaluation process, this individual could manipulate that process by creating a contrived and false narrative, solely for the purpose of obtaining an exemption approval. Upon review of the Department’s response, the Department did not provide supporting information to demonstrate how disclosure of this information would hinder the proper performance of the Department’s necessary government function. Therefore, the Department has not met its burden to withhold the responsive records under Exemption (b).

Kate Silvia SPR24/0518 Page 4 March 1, 2024 Exemption (d) Exemption (d) allows the withholding of: inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this subclause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based G. L. c. 4, § 7(26)(d). Exemption (d) is intended to avoid premature release of materials that could taint the deliberative process if disclosed. Its application is limited to recommendations on legal and policy matters found within an ongoing deliberative process. See Babets v. Sec’y of the Exec. Office of Human Servs., 403 Mass. 230, 237 n.8 (1988). Factual reports which are reasonably complete and inferences which can be drawn from factual investigations, even if labeled as opinions or conclusions, are not exempt as deliberative or policy making materials. G. L. c. 4, § 7(26)(d); see also Envtl. Prot. Agency v. Mink, 410 U.S. 73, 89 (1973) (purely factual matters used in the development of government policy are subject to disclosure). The Supreme Judicial Court opined on the issue of attorney work product in DaRosa v. New Bedford, 471 Mass. 446 (2015). In DaRosa, the SJC concluded that “opinion” work product that was prepared in anticipation of litigation or for trial by or for a party or its representative falls within the scope of Exemption (d). DaRosa, 471 Mass. at 448. It also concluded that "fact" work product under Mass. R. Civ. P. 26(b)(3) that was prepared in anticipation of litigation or trial falls within the scope of Exemption (d) where it is not a reasonably completed study or report or, if it is reasonably completed, where it is interwoven with opinions or analysis leading to opinions. Id. The Court left open “the question whether opinion work product might no longer be protected once the litigation is concluded,” noting that the answer “may depend on the particular circumstances, such as the risk of similar litigation.” Id. at 459 n.16. Common law attorney-client privilege A records custodian claiming the attorney-client privilege under the Public Records Law has the burden of not only proving the existence of an attorney-client relationship, but also (1) that the communications were received from a client during the course of the client’s search for legal advice from the attorney in his or her capacity as such; (2) that the communications were made in confidence; and (3) that the privilege as to these communications has not been waived. See Suffolk Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444, 450 n.9 (2017); see also Hanover Ins. Co. v. Rapa & Jepsen Ins. Servs., 449 Mass. 609, 619 (2007) (stating that the party seeking the attorney-client privilege has the burden to show the privilege applies). Records custodians seeking to invoke the common law attorney-client privilege “are required to produce detailed indices to support their claims of privilege.” Suffolk, 449 Mass. at 460.

Kate Silvia SPR24/0518 Page 5 March 1, 2024 Pursuant to the Public Records Law, in assessing whether a records custodian has properly withheld records based on the claim of attorney-client privilege the Supervisor of Records “shall require, as part of the decision making process, that the agency or municipality provide a detailed description of the record, including the names of the author and recipients, the date, the substance of such record, and the grounds upon which the attorney-client privilege is being claimed.” G. L. c. 66, § 10A(a). In its December 7th response, the Department stated, “[a]dditionally, particular documents that [Ms. Wagner has] requested… are also exempt from disclosure as attorney work product by the attorney-client privilege.” I find that the Department has not satisfied the three-part test set out in the Suffolk case. See Suffolk, 449 Mass. at 460. Specifically, the Department must clarify that the communications were received from a client during the course of the client’s search for legal advice from the attorney in his or her capacity as such and that the communications were made in confidence and that the privilege as to these communications has not been waived. Additionally, the Department is advised that G. L. c. 66, § 10A(a) requires that a records custodian must provide a privilege log in accordance with the Public Records Law. The log must include the date, the names of the author and recipients, the substance of the record, and the grounds upon which the attorney-client privilege is being claimed. Further, the Department has not met its burden to withhold the responsive records as attorney work product under Exemption (d). Specifically, it is unclear how the responsive records constitute the type of “opinion” work product prepared in anticipation of litigation or for trial, as required under Exemption (d). See DaRosa, at 448. Further, the Department has not met its burden to show that the responsive records are not factual in nature, nor reasonably completed, nor that the records are interwoven with opinions or analysis leading to opinions. See DaRosa, at 448. Additionally, it is unclear from the Department’s response which specific records the Department intends to withhold. The Department must identify the records, categories of records, or portions of records it intends to withhold under Exemptions (b) and (d), and the attorney-client privilege. See G. L. c. 66, § 10(b)(iv) (a 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”). Request Number 2 Exemption (c) Exemption (c) applies to:

Kate Silvia SPR24/0518 Page 6 March 1, 2024 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) (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 stated: [Request 2] seeks personnel and sensitive medical information of Department employees, the disclosure of which may constitute an unwarranted invasion of personal privacy…

Kate Silvia SPR24/0518 Page 7 March 1, 2024 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 Department 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. Also, 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 the possibility that the employee could be identified. Additionally, exemption documents are often handwritten and a requestor could attempt to crossreference 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 that relates to a specifically named individual, I find the Department may permissibly redact such portions from disclosure under Exemption (c) regarding request #2. However, it is unclear how the records can be withheld in their entirety. Particularly, it is uncertain how non-exempt information is inextricably intertwined with exempt information that records cannot be segregated. See Reinstein, 378 Mass. at 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any nonexempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Conclusion Accordingly, the Department is ordered to provide Ms. Wagner with a response to the 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. Ms. Wagner may appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1).

Kate Silvia SPR24/0518 Page 8 March 1, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Carolyn Wagner