John Grace v. Division of Insurance (SPR 20170053)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords January 23, 2017 SPR17/053 Mindy A. Merow Rubin, Esq. Records Access Officer Massachusetts Division of Insurance 1000 Washington Street, Suite 810 Boston, MA 02118 Dear Attorney Rubin: I have received the petition of John Grace appealing the response of Massachusetts Division of Insurance (Division) to a request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Mr. Grace requested to review records regarding a specified rate increase and the reasons presented for it. Previous appeal ' This request was the subject of a previous appeal. See SPR16/1213 Determination of the Supervisor of Records (December 29, 2016). I closed SPR16/1213 with the understanding the Division was working to provide potentially responsive records to Mr. Grace. I understand Mr. Grace obtained certain information, but as indicated in his January 9, 2017 appeal petition, the rate increase request "and the reasons for the request, were not attached or otherwise reachable through the information publicly available on these websites." This appeal (SPR17/053) was opened in light of Mr. Grace's petition. 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). 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 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

Mindy A. Merow Rubin, Esq. SPR17/053 Page2 January 23, 2017 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. 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. Status ofthe requester Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requesters. Access to a record requested pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requester. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Mr. Grace's purpose in making the request has no bearing on the public status of any existing responsive records. Exemption (d) In your November 4, 2016 response, you contend that the entirety ofthe requested records may be withheld from disclosure pursuant to Exemption (d) of the Public Records Law. 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. Sec'y of the Exec. Office ofHuman 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. Protection Agency v. Mink,

Mindy A. Merow Rubin, Esq. SPR17/053 Page 3 January 23, 2017 410 U.S. 73, 89 (1973) (purely factual matters used in the development of government policy are always subject to disclosure). In an email dated January 13, 2017 you indicate that "the company at issue has sued the Commissioner of Insurance relative to this rate filing" and that you would like to further discuss "claims of policy development." I understand an attorney on my staff contacted you and provided a copy ofthe file associated with this appeal. You indicated the Division would provide a supplemental response that, in particular, addresses the applicability of Exemption (d) in light of the litigation at issue. Conclusion Accordingly, I will consider this appeal closed with the proviso that the Division provide · Mr. Grace with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (1 0) business days. 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: John Grace