Shefali Luthra v. Executive Office of Health & Human Services (SPR 20180826)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 20, 2018 SPRlS/826 Patricia M. Scanlon Records Access Officer Executive Office of Health and Human Services One Ashburton Place, 11th Floor Boston, MA 02108 Dear Ms. Scanlon: 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: All correspondence (including, but not limited to, emails, letters, transcripts of phone calls, etc) between the EOHHS and the U.S. Department of Health and Human Services pertaining to "Medicaid," "formulary" and "waiver." This request is for correspondence beginning after September 8, 2017 until the present day. Previous appeal The requested records were the subject of a previous appeal. See SPRl 8/578 Determination of the Supervisor of Records (May 9, 2018). In my May 9th determination, I found that EOHHS had not met its burden of specificity in withholding all the responsive correspondence pursuant to Exemption ( d). I ordered EOHHS to review the records, redact where necessary, and provide the records to Ms. Luthra. Additionally, I ordered EOHHS to identify what records it has in its possession, custody and control that are responsive to Ms. Luthra' s request. EOHHS provided Ms. Luthra a supplemental response, dated May 23, 2018, regarding its i\ Exemption ( d) claim to withhold responsive correspondence. On June Ms. Luthra appealed EOHHS's continued Exemption (d) claim to withhold the records. As a result, the current appeal, SPR18/826, was opened. EOHHS was notified of the current appeal. 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 M. Scanlon SPR18/826 Page 2 June 20, 2018 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). Exemption (d) 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). In its May 23rd response, EOHHS explains that the only records responsive to Ms. Luthra's request are emails, and that Ms. Luthra incorrectly characterized the status of the MassHealth 1115 waiver process. This response states, "[o ]n September 8, 2017, EOHHS submitted a revised waiver amendment request to [Centers for Medicare and Medicaid Services], and also posted the revised waiver amendment request on its website. Importantly, as of this date, EOHHS continues active negotiations with CMS in relation to its waiver amendment request, and CMS has neither approved nor denied EOHHS's pending waiver amendment request." You further contend, "[bJ ecause EOHHS and CMS continue to negotiate the pending

Patricia M. Scanlon SPR18/826 Page 3 June 20, 2018 waiver amendment request, any post September 8, 2017, analyses or policy development supporting the waiver amendment request, including analyses or policies relating to specific questions regarding EOHHS's so-called 'closed formulary' request, are not final and constitute confidential deliberative processes." I find that EOHHS has still not established that the email communications do not contain any factual material, nor how release of the email communications, even in a redacted format, will taint the CMS's decision of whether to approve or deny the EOHHS's waiver request for a "closed formulary." In particular, it is not clear why information such as the date, time, subject line of the email headers, and non-exempt portions of the body of emails, cannot be provided. EOHHS has not met its burden of specificity in claiming that Exemption (d ) applies to withhold all the responsive emails. Burden ofs pecificity; duty to segregate Pursuant to the Public Records Law, the burden shall be upon the custodian to prove with specificity how an exemption applies to withhold responsive records. See G. L. c. 66, § IO(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, 3 78 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). EOHHS must produce any non-exempt, segregable portions of the public records. G. L. c. 66, § 1O (a). Order Given that EOHHS has not met its burden in demonstrating that the emails may be withheld in their entirety under Exemption ( d), EOHHS is ordered to review the emails, redact where necessary, and provide the emails to Ms. Luthra 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 that accompanies the records to explain the redactions 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: Shefali Luthra