Shefali Luthra v. Executive Office of Health & Human Services (SPR 20180578)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 9, 2018 SPR18/578 Patricia Scanlan Records Access Officer Executive Office of Health and Human Services One Ashburton Place; 11th Floor Boston, MA 02108 Dear Ms. Scanlan: I have received the petition of Shefali Luthra of Kaiser Health News appealing the response of the Executive Office of Health and Human Services (EOHHS) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Ms. Luthra requested a copy of: "all correspondence (including emails, letters, transcripts of phone calls, etc.) between EOHHS and the U.S. Department of Health and Human Services (HHS) pertaining to "Medicaid," "formulary" and "waiver" beginning after September 8, 2017 until the present. In an April 17, 2018 response, the EOHHS denied Ms. Luthra's request, in its entirety, pursuant to Exemption ( d) of the Public Records Law. As a result, Ms. Luthra petitioned the Supervisor of Records and this appeal was opened. 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, § 1O (b )(iv) (written response must "identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based ... "); 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). 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

Patricia Scanlan SPR18/578 Page2 May 9, 2018 The EOHHS 's April 17, 2018 response In its April 1J 1h response, the EOHHS denied Ms. Luthra's request, in its entirety, pursuant to Exemption ( d) of the Public Records Law. Exemption (d ) 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). You contend that "[t]he EOHHS is still in negotiations with the Centers for Medicare and Medicaid Services (CMS) relating to the 'MassHealth 1115 Demonstration Amendment Request' (waiver request); therefore, EOHHS is withholding the records until approval of the EOHHS's waiver request and implementation of the relevant policies." In her April 2J1h petition Ms. Luthra asserts "[t]he agency in question-EOHHS -has already developed its policy positions, both on the broader issue of the MassHealth 1115 waiver, and on the more specific question of introducing a Medicaid formulary. This is evidenced by the state's application to CMS, which was made available online for public comment, and which specifically calls for a Medicaid formulary. As a result, correspondence between EOHHS and HHS regarding this matter is not exempted by (d)." This office was able to verify Ms. Luthra's statements that both the application for the waiver request and the public comments, dated September 8, 2017, are posted on the EOHHS's website. I find that the EOHHS has not met its burden to show how the requested correspondence is not purely factual, nor how disclosure of even redacted records would taint the deliberative process. Despite EOHHS's public comment period in and its filing of the waiver request with HHS, the Department has not established how the correspondence records are recommendations on legal or policy matters or how they are "inter-agency or intra-agency memoranda or letters relating to policy positions being developed by EOHHS as required by Exemption ( d).

Patricia Scanlan SPR18/578 Page 3 May 9, 2018 Specificity in responding; claiming exemptions Pursuant to the Public Records Law, the burden shall be upon the custodian to prove with specificity how Exemption (d) applies to withhold all the responsive records. See G. L. c. 66, § lO(b)(iv); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The EOHHS did not meet its burden of demonstrating how the responsive records, in their entirety, are exempt from disclosure. See Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). The EOHHS must produce any non-exempt, segregable portions of the public records. G. L. c. 66, § lO(a). Furthermore, the EOHHS did not identify the records, categories of records or portions of records in its possession that it intends to withhold from disclosure. Here, the EOHHS merely stated that all the requested records are exempt under Exemption (d). To deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § lO(b)(iv); see also 950 C.M.R. 32.06(3)(c)(4). Consequently, the EOHHS must provide Ms. Luthra with a response identifying the records in its possession that it is withholding. It is my understanding that a Public Records Division attorney called EOHHS to discuss this appeal with you; however was unable to connect with you. Order Given that the EOHHS did not provide the specificity required in withholding the records, as required by statute, the EOHHS cannot withhold the requested records in their entirety pursuant to Exemption (d). See G. L. c. 66, § lO(b)(iv). Accordingly, the EOHHS is ordered to review the responsive records, redact where necessary and provide Ms. Luthra with the requested records, in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) 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. The EOHHS may request a reconsideration of this determination within 10 business days of the date of this letter. Sincerely, Rebecca S. Murray Supervisor of Records cc: Shefali Luthra