Erin Smith v. Department of Transitional Assistance (SPR 20170301)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords March 22, 2017 SPR17/301 Nakisha L. Skinner, Esq. General Counsel Department of Transitional Assistance Executive Office of Health and Human Services 600 Washington Street Boston, MA 02111 Dear Attorney Skinner: I have received the petition of Erin Smith of Fox 25 News appealing the response of the Department of Transitional Assistance (Department) to a request for public records. G. L. c. 66 § lOA; see also 950 C.M.R. 32.08(1). Specifically, Ms. Smith requested copies of "all emails, memos and reports sent to [the Department] Commissioner McCue about EBT cards or benefits from Oct. 1 to Oct. 31, 2016." Previous appeals This request was the subject of previous appeals. See SPR16/1232 Determination of the Supervisor of Records (January 3, 2017); SPRl 7/108 Determination of the Supervisor of Records (February 6, 2017). This office closed SPRl 7/108 with the proviso that the Department provide Ms. Smith with a response to the request, provided in a manner consistent with the order, the Public Records Law and its Regulations. The Department provided a response dated March 8, 2017 in which it provided certain redacted records. The Department also withheld records under Exemption ( d) to the Public Records Law: G. L. c. 4, § 7(26)(d). Ms. Smith appealed and SPRl 7/301 was opened. Current appeal In its March 8th response the Department provided 75 pages ofrecords and explains "with respect to emails pertaining to recipients of cash assistance, names, addresses, and other personally identifiable information has been redacted." You further explain "[rJ ecords pertaining to development of a position on Supplemental Nutrition Assistance Program expungement policy, the deliberative process for which is open and ongoing, have been withheld" under Exemption (d ). You indicate "[p] remature release of such records could taint the deliberative 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

Nakisha L. Skinner, Esq. SPR17/301 Page2 March 22, 2017 process if disclosed. These records are not segregable." Ms. Smith objects to the withholding of records in their entirety. In Camera Inspection of Records The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § lO(c); 950 C.M.R. 32.08(4). 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, § lO(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). The Department has not met its burden in demonstrating how these requested records may be withheld in their entirety. It is the finding of this office that an in camera review of an unredacted copy of the responsive records withheld under Exemption (d) would facilitate a determination as to the applicability of exemption claims made by the Department. See 950 C.M.R. 32.08(4). After I complete my review of the documents, I will return the records to your custody and issue an opinion on the public or exempt nature of the record. The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G.L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Massachusetts Comm'n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. Accordingly, you are hereby ordered to provide this office with an unredacted copy of the responsive records withheld under Exemption ( d) without delay. The Department may provide this office with an explanation of its position regarding the applicability of an exemption to the responsive records. Please be advised that, unlike the materials provided for in camera review,

Nakisha L. Skinner, Esq. SPRl 7/301 Page 3 March 22, 2017 any such additional correspondence would be placed in the file for this appeal and would be subject to public disclosure as a public record. Sincerely, Rebecca S. Murray Supervisor of Records cc: Erin Smith