Dean Richlin v. Division of Insurance (SPR 20171741)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords January 5, 2018 SPR17/1741 Mindy Merow Rubin, Esq. Counsel to the Commissioner/Records Access Officer Division of Insurance 1000 Washington Street Boston, MA 02118-6200 Dear Attorney Rubin: I have received the petition of Dean Richlin, Esq. appealing the response of the Division oflnsurance (Division or DOI) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on October 12, 2017, Attorney Richlin requested the following records: "1. All Public Records concerning the Rate Filings 2. All Public Records created by DOI and concerning communications with Genworth about the Rate Filings, including but not limited to (a) requests to Genworth for additional information, (b) requests to Genworth concerning proposed changes to the filed rate requests prior to final rate dispositions (including the basis for such proposed changes), (c) actuarial or other objections to the Rate Filings, and (d) the February 23 Letter. 3. All Public Records, including without limitations records of any communication to, from or within DOI of OCBR or any actuarial analysis performed by or for DOI of OCBR, concerning whether any rate increases sought in the Rate Filing were excessive, inadequate, unjustified or umeasonable in relation to the benefits provided, or whether the rates proposed by DOI in response to the Rate Filings were appropriate, adequate, actuarially justified and reasonable in relation to the benefits provided. 4. All Public Records, including all actuarial analyses and work product, supporting or concerning (a) all objections to the Rate Filings and (b) the basis for the statements, opinions or conclusions expressed in the February 23 Letter." The Division provided a response on November 3, 2017, which included some responsive records. The Division subsequently provided an updated response on November 20, 2017. The Division also denied access to other records pursuant to Exemption ( d) of the Public Records 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 Merow Rubin, Esq. SPRl 7/1741 Page2 January 5, 2018 Law and the common law attorney client privilege. G. L. c. 4, § 7(26)(d). Unsatisfied with the Division's response, Attorney Richlin petitioned this office and this appeal, SPRl 7 /17 41, 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, § lOA(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 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, § lO(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, § 1O (b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Division's November 3rd response In its November 3rd response, the Division indicated that it was providing "SERFF filing records for each of the four filings made by Genworth on December 21." However, it indicated that additional records would not be produced because they are exempt from disclosure pursuant to Exemption (d) of the Public Records Law. The Division indicated that "[t]hese documents concern policy decisions regarding litigation strategy and case preparation in the ongoing litigation between Genworth and the [Division] and therefore relate to policy positions being developed by this agency." The Division also denied access to records under the attorney client privilege because "they are communications between a client and an attorney undertaken for the purpose of obtaining legal advice .... These documents ... contain legal opinions and advice concerning the rate filings made by Genworth on December 21, 2012." The Division indicated that these communications were "made in confidence between attorneys within the Division's office of the General Counsel and senior staff within the Division, and the Undersecretary and General Counsel of the Office of Consumer Affairs and Business regulation. No party to the communications has waived the privilege, and the Division denies access to these documents."

Mindy Merow Rubin, Esq. SPR17/1741 Page 3 January 5, 2018 The Division's November 20th response In its November 20th response, the Division indicated that records provided in the November 3rd response were not the final SERFF records. As such, the Division provided a copy of the final SERFF record for each filing including "all communications related to the actuarial review of the filings." The Division indicated that Attorney Richlin has been provided "all publicly available documents related to the review of the 2012 rate filings." However, the Division reiterated that some records were withheld pursuant to Exemption ( d) of the Public Records Law and the common law attorney-client privilege. Exemption (d) The Division indicated it withheld responsive records 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 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. Protection Agency v. Mink, 410 U.S. 73, 88 (1973) (purely factual matters used in the development of government policy are always subject to disclosure). Under its Exemption ( d) claim, the Division indicated that the records "contain work product prepared in anticipation of litigation." The Division indicated that "Communications with Genworth over the past several years, including the October 24, 2016 letters from Genworth, created reasonable expectation of litigation. The DOI and Genworth continue to be engaged in litigation concerning the 2012 rate filings." The Division further indicated that "Genworth continues to have pending rate filings, and the DOI anticipates that future litigation is likely. The documents were drafted with litigation in mind and contain the mental impressions, conclusions, opinions and legal theories and strategies of the DOI's attorneys." According to Attorney Richlin, the litigation referred to in the Division's response "concerned a different issue -- whether a statute operated to deem Genworth' s rates approved in 2016 as a matter of law ..." Attorney Richlin also claims, "the actuarial policies related to the ·

Mindy Merow Rubin, Esq. SPRl 7/1741 Page 4 January 5, 2018 [Division's] disapproval of Genworth' s filings is distinct from the 'deemer' litigation." Therefore, because Attorney Richlin requested the Division's "actuarial review of Genworth' s rate increase filings," it is unclear how the ongoing litigation, which appears to relate to a different matter, hinders the Division from providing the requested records. Further, Attorney Richlin claims that the Division "conducts actuarial analysis solely to determine whether a proposed rate filing meets the standards set out in the applicable statutes and regulations and not for other purposes ... including developing or aiding litigation strategy." He also states that the "engagement of actuaries regarding the Rate Filings occurred in 2012 and 2013, at least three years before there was any hint of potential litigation between Genworth and the [Division]." Consequently, it is unclear how the actuarial analysis, a required element in the Division's review of a rate filing, was conducted with litigation in mind and could have contained the "mental impressions, conclusions, opinions and legal theories and strategies" as claimed by the Division. The Division must clarify this matter. Common law attorney-client privilege With respect to records being withheld under the attorney-client privilege, please note that 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. Suffolk Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 450 n.9 (2007); see also Hanover Ins. Co. v. Rapo & 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). Disclosing attorney-client communications to a third party generally undermines the privilege. Comm'r of Revenue v. Comcast Corp., 453 Mass. 293, 306 (2009). Further, record custodians seeking to invoke the common law attorney-client privilege "are required to produce detailed indices to support their claims of privilege." Suffolk Constr. Co., 449 Mass, at 460. 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, § lOA(a). Under its attorney-client privilege claim, the Division indicated that the withheld communications were "between a client and an attorney undertaken for the purpose of obtaining legal advice .... These documents ... contain legal opinions and advice concerning the rate filings made by Genworth on December 21, 2012. They consist of communications made in confidence between attorneys within the Division's office of the General Counsel and senior staff within the Division, and the Undersecretary and General Counsel of the Office of Consumer Affairs and Business regulation. No party to the communications has waived the privilege, and

Mindy Merow Rubin, Esq. SPRl 7/1741 Page 5 January 5, 2018 the Division denies access to these documents." The Division also provided a privilege log for forty email communications withheld under the attorney-client privilege. Although the Division has provided a privilege log with a detailed description of the record including the names of the author and recipients, date, and subject matter of the record, it is unclear how the privilege applies to all the email communications. It is also uncertain how the privilege has not been waived in some of the email communications. According to Attorney Richlin, Documents 2, 23, 30, 34, 35, and 36, are not communications that should "contain legal opinions and advice concerning the rate filings" because they are not communications between attorneys despite attorneys being copied on some of the emails. Consequently, it is unclear how the attorney-client privilege applies to withhold these email communications. As such, the Division has not met its burden of specificity in applying the attorney-client privilege to withhold the above mentioned email records. Additional responsive records The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian ofrecords at the time of the request. See G. L. c.66, § lO(a)(ii). Although the Division provided responsive records, Attorney Richlin claims that records such as "actuarial analyses, working papers and opinions that support or provide the basis for statements, opinions and conclusions in the February 23, 2017 disapproval letter" have not been provided. Attorney Richlin also claims that "actuarial documents created after December 2013 or identified on its privilege log any internal documents created prior to 2017 and any documents between 2012-2016 or [the Division's] own internal analyses, working papers and opinions" were not provided. Based on the Division's response, together with Attorney Richlin's petition, it is unclear if the Division possesses additional responsive records. I understand a Public Records Division staff attorney contacted your office about this appeal and you indicated the Division would provide a supplemental response to Attorney Richlin. Conclusion Accordingly, whereas the Division has indicated that it will provide a supplemental response, I will now consider this administrative appeal closed with the proviso that the Division provides said response in a manner consistent with this order, the Public Records Law, and its Regulations within ten 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: Dean Richlin, Esq.