Anthony Veloso v. Massachusetts Division of Insurance (SPR 20191635)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 23, 2019 SPR19/1635 Mindy A. Merow Rubin, Esq. Counsel to the Commissioner/Records Access Officer Massachusetts Division of Insurance 1000 Washington Street Boston, MA 02118 Dear Attorney Rubin: I have received the petition of Anthony Veloso appealing the response of the Division of Insurance (Division) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, on July 25, 2019, Mr. Veloso requested the following records: 1. "Rate increase history for traditional long term care insurance carrie[r]s." 2. "Existing proposed rate increases for traditional long term care insurance carriers." 3. "Any rules/regulations that state how much time can pass between rate increases of traditional long term care insurance." The Division responded on August 6, 2019, which included responsive records. The Division also denied access to certain records pursuant to Exemption ( d) of the Public Records Law. G. L. c. 4, § 7(26)(d). Unsatisfied with the Division's response, Mr. Veloso petitioned this office and this appeal, SPR19/1635, 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 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. SPR19/1635 Page 2 August 23, 2019 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 August 6,,, response In its August 6, 2019 response, the Division enclosed" ... a list of approved long-term insurance rate increases." The Division asserts that it is denying access to" ... pending proposed rate filings[,]" under Exemption (d), because this exemption" ... allows the agency to maintain the confidentiality of records related to a matter until such time as the deliberative process has been completed and a decision rendered." The Division indicates that "[w]hen [it] has concluded its deliberative process and made a policy decision relative to the rate filings, the filings will no longer be exempt from disclosure and available upon request." With respect to request 3, the Division states that " ... there are no time restrictions for carriers to file rate increases in the current regulation governing long-term care insurance, 2111 CMR 65.00." Exemption (d) 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). In his appeal petition, Mr. Veloso indicates that he requests access to" ... currently applied for rate increases of traditional long term care insurance, specifically for the insurer, Genworth." In the Division response, it indicates that it is denying access to " ... pending proposed rate filings ...." Based on the Division's response it is unclear if these records are similar to the ones being requested by Mr. Veloso. The Division must clarify this matter.

Mindy A. Merow Rubin, Esq. SPR19/1635 Page 3 August 23, 2019 In the event that the records are the same, the Division indicated that they are exempt from disclosure under Exemption ( d). Although the Division claims that it is in the deliberative process regarding the proposed rate filings, the Division does not make clear that the responsive records are "inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency" as required by Exemption (d). In paiiicular, the Division has not demonstrated that the responsive records were only sent between governmental entities or consultants. See DOI v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 4 (2001) (indicating that a requirement for Freedom of Information Act (FOIA) exemption 5 to apply is "its source must be a Government agency"); Cty. of Madison v. United States Dep't of Justice, 641 F.2d 1036, 1040 (1st Cir. 1981) (finding that documents from a private party are not "intra-agency" under FOIA exemption 5); SPR95/336 Determinations of the Supervisor of Records (August 14, 1995; August 31, 1995) (finding that Exemption ( d) does not protect materials submitted to an agency by third parties and only applies to governmental agencies or consultants). Additionally, the Division did not provide information regarding how disclosure of the records would taint the deliberative process. The Division must clarify these issues. Conclusion Accordingly, the Division is ordered to provide Mr. Veloso with a response to the request, provided 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: Anthony Veloso