Dean Richlin v. Division of Insurance (SPR 20180311)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords March 26, 2018 SPR18/311 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/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 unreasonable 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." 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. SPR18/31 l Page2 March 26, 2018 Previous appeal This request was the subject of a previous appeal. See SPRl 7/1741 Determination of the Supervisor of Records (January 5, 2018). I closed SPRl 7/1741 with the proviso that the Division provide Attorney Richlin with a supplemental response, provided in a manner consistent with the order, the Public Records Law, and its Regulations. Following the January 5th determination, the Division provided a response dated January 22, 2018 in which it continues to claim that some responsive records are exempt from disclosure under Exemption (d) of the Public Records Law and the attorney-client privilege. G. L. c. 4, § 7(26)(d). Unsatisfied with the Division's response, Attorney Richlin petitioned this office and this appeal, SPR 18/311, was opened as a result. Purpose of request; identity of 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 requestors. Access to a record 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, Attorney Richlin's purpose in making the request has no bearing on the public status of any existing responsive records. It should be noted that the discovery process and the Public Records Law are two distinct and independent avenues for gaining access to records. The Massachusetts Supreme Judicial Court has held that while a party's access to records may be limited by the Public Records Law, this may not preclude obtaining the records through discovery. Commonwealth v. Wanis, 426 Mass. 639 (1998). See also 950 C.M.R. 32.08(1)(a) (the administrative appeal process "shall not apply to records in which an individual, or a representative of the individual, has a unique right of access to the record through statutory, regulatory, judicial or other applicable means"). As such, Attorney Richlin may wish to consider another means of seeking to obtain any existing responsive records. 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

Mindy A. Merow Rubin, Esq. SPR18/311 Page 3 March 26, 2018 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, § lO(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 January 22nd response In its January 22, 2018 response, the Division indicated that it is not withholding "any actuarial analyses, working papers, communications or opinions" and that it has "provided [Attorney Richlin] with all actuarial analyses related to the 2012 rate filings. No additional responsive documents exist." The Division reiterated that it withheld responsive records pursuant to Exemption ( d) and the attorney-client privilege. Exemption (d) The Division claimed it withheld responsive records pursuant to Exemption ( d) of the Public Records Law. 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. Protection Agency v. Mink, 410 U.S. 73, 89 (1973) (purely factual matters used in the development of government policy are subject to disclosure). Under its Exemption ( d) claim, the Division indicated that the records contain no actuarial analyses. The Division reiterated that its "ongoing communications with Genworth, including the October 24, 2016 letter from Genworth, created a reasonable expectation of litigation. That expectation was realized on January 9, 2017 when Genworth filed a suit against the Commissioner oflnsurance." The Division asserted that "[t]his litigation is not ... limited to

Mindy A. Merow Rubin, Esq. SPR18/311 Page4 March 26, 2018 the narrow deemer issue," but to "the review of rate filings for long-term insurance. The decision in this case will affect both pending and future rate increases filed by all carriers, not only Genworth. Nor is the litigation concluded as Genworth has recently filed an appeal of the decision issued by the Superior Court." 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 common law attorney-client privilege claim, the Division indicated that all forty email communications, including the six Attorney Richlin indicated should not fall under the privilege because the attorneys were "simply copied" on them, are in fact exempt for the reason that "[a]ll the communications are instances where an attorney is seeking information in order to provide legal advice, the client is gathering information to provide to the attorney or the client is providing information for the attorney to review in order to provide legal advice." The Division reiterates, "[n]o privilege has been waived as no third parties have seen the communications. Every author and reader is either counsel or the client providing necessary and highly useful information, not actuarial in nature, regarding a legal matter needed by counsel in order to provide legal advice." Burden of specificity Pursuant to the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. G. L. c. 66, § 1 O(b )(iv) (written response must "identify any records, categories of records or portions of records that the agency or municipality

Mindy A. Merow Rubin, Esq. SPR18/311 Page 5 March 26, 2018 intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based ... "); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. As the Division has indicated, it reasonably anticipated litigation after Genworth's submission of its rate filings based on its ongoing communications with Genworth, including Genworth's October 24th letter to the Division. Consequently, based on the Division's claim that it anticipated litigation because of its ongoing communications and the October 24th letter, supported by the fact that a suit was filed on January 9, 2017, I find that the Division has met its burden to properly withhold responsive records under Exemption (d) of the Public Records law. With respect to the attorney-client privilege claim, the Division indicated that these emails reflect communications made in confidence, for the purposes of obtaining legal advice and that the privilege has not been waived. Based on the Division's indications that the communications were necessary to provide useful information needed by counsel to provide legal advice, coupled with the fact that the Division provided a privilege log describing the 40 emails that it withheld under the attorney-client privilege claim in its initial November 3, 2017 response, I find the Division has met its burden in applying the attorney-client privilege and may permissibly withhold responsive records from disclosure. See Comm'r of Revenue v. Comcast ~, 453 Mass. 293,306 (2009), (citing Foster v. Hall, 29 Mass. 89 (1831)) (finding that "the privilege extends to communications with agents of attorney who are 'necessary to secure and facilitate communication between attorney and client."') No duty to create records Under the Public Records Law, the Division is not required to create a record in response to a public records request. See G. L. c. 66, § 6A( d). 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). As such, whereas the Division has indicated that it does not possess additional responsive records regarding actuarial analyses, working papers, communications or opinions except the communications it is withholding pursuant to the above exemption and privilege, I find Attorney Richlin' s appeal relating to such requests has been resolved. Conclusion Accordingly, whereas I find that the Division provided requested records and may permissibly withhold the remaining requested records under Exemption ( d) and the attorney client privilege, I will consider this administrative appeal closed. If Attorney Richlin is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 1O (b) (pursuing administrative appeal does not limit availability of applicable judicial remedies).

Mindy A. Merow Rubin, Esq. SPR18/311 Page 6 March 26, 2018 Sincerely, Rebecca S. Murray Supervisor of Records cc: Dean Richlin, Esq.