Joseph Cohen v. Division of Insurance (SPR 20160753)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords September 30, 2016 SPR16/753 Ms. Mindy A. Merow Rubin, Esq. Counsel to the Commissioner - Records Access Officer Massachusetts Division of Insurance 1000 Washington Street, Suite 81 0 Boston, MA 02118-6200 Dear Attorney Merow Rubin: I have received the petition of Joseph Cohen appealing the response of the Executive Office of Consumer Affairs and Business Regulations-Division of Insurance (the Division) to a request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Mr. Cohen requested a copy of Genworth Long-term Care Insurance's (Genworth) filing for a premium rate increase, including the amount of the premium rate increase requested. The Division denied all records containing in the filing from Genworth pursuant to Exemption (d) of the Public Records Law. G. L. c. 4, § 7(26)(d). Mr. Cohen appealed. 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, § 10(c); 950 C.M.R. 32.08(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). The Division's written response was provided twenty-one (21) days after the request. Under the Public Records Law and the Access Regulations (Regulations) all requests for public records must be met with a response within ten (10) days of the request. G. L. c. 66, § 10(b); 950 C.M.R. 32.05. The ten-day provision is a maximum, rather than a minimum, time frame for complying with a public records request. The response may be an offer to provide records, a fee estimate for provision of the records, or a denial. The Division is advised that all records custodians must comply with both the Public Records Law and the Regulations with respect to the timeliness of response. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Ms. Mindy A. Merow Rubin, Esq. SPR16/753 Page2 September 30, 2016 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 ( c); see also District 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 or records. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1O (a); see also 950 C.M.R. 32.06(2) (where cost of complying with a request for public records is expected to exceed ten dollars ($10.00), custodian of records shall provide written good faith estimate). Once fees are paid, a records custodian must provide the responsive records. To assist in requesting and responding to requests for public records please refer to our publication, A Guide to the Massachusetts Public Records Law. This document is available on the Internet, free of charge, at http://www.sec.state.ma.us/pre/prepdf/guide.pdf. Attorneys on my staff are available during regular business hours to answer general questions regarding the Public Records Law. In addition, members of my staff will visit a records custodian in person to conduct training workshops on the Public Records Law upon request. Please contact my office directly at the telephone number provided in this determination for further information. Exemption (d) Your September 15, 2016 email response explained that the request for a rate increase of the long-term care premiums offered by Wentworth to consumers is currently under review and therefore exempt from disclosure pursuant to Exemption (d) of the Public Records Law. G. L. c. 4, § 7 (26) (d). The Division seeks to withhold all records filed with the Division until a decision has been made. Exemption (d) applies to: 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. Babets v. Secretary of the Executive Office ofHuman Services, 403 Mass. 230, 237 n.8 (1988).

Ms. Mindy A. Merow Rubin, Esq. SPR16/753 Page 3 September 30, 2016 The Division has not supported the Exemption (d) claim by showing how release of responsive records would taint any Division deliberative process. Therefore, I find that the Division has failed to meet its statutory obligation to state with specificity the application of Exemption (d) to all of the responsive records. Order I find the Division has failed to properly respond to a request for public records. Accordingly, the Division is hereby ordered to provide Joseph Cohen with a revised written response to his request, prepared in a manner consistent with this order, the Public Records Law and its Regulations. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. cc: Mr. Joseph Cohen