Victoria Pulos v. Executive Office of Health & Human Services (SPR 20200166)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 11, 2020 SPR20/0166 Alexander deBlieck Records Access Officer Executive Office of Health and Human Services 1 Ashburton Place, Room 1109 Boston, MA 02108 Dear Mr. deBlieck: I have received the petition of Victoria Pulos of tp.e Massachusetts Law Reform Institute appealing the response of the Executive Office of Health and Human Services (Office/EOHHS) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on September 18, 2019, Ms. Pulos requested 8 categories ofresponsive records. The Office provided a response on October 2, 2019, indicating it is gathering records potentially responsive to items 1, 3, 5, 6, and 7. The Office also indicated that it did not possess records responsive to items 4 and 8. With respective to item 2, requesting"[ a] copy of any Business Requirements Documents regarding MassHealth income verification process in the hCentive HIX/IES system[,]" the Office provided a fee estimate. The Office subsequently provided a second response dated November 1, 2019. This appeal pertains to only item 2 of the original request. Objecting to the Office's responses, Ms .. Pulos petitioned this office and this appeal, SPR20/0166, 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 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

Alexander deBlieck SPR20/0166 Page 2 February 11, 2020 or redacted portion of the responsive record. Fee estimates - agencies An agency may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § lO(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.05) per page may be assessed for a black and white single or double-sided photocopy of a public record. G. L. c. 66, § lO(d)(i). Agencies may not assess a fee for the first four hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested. G. L. c. 66, § lO(d)(ii). Where appropriate, agencies may include as part of the fee an hourly rate equal to or less than the hourly rate attributed to the lowest paid employee who has the necessary skill required to search for, compile, segregate, redact or reproduce a record requested, but the fee shall not be more than $25 per hour. Id. A fee shall not be assessed for time spent segregating or redacting records unless Sllch segregation or redaction is required by law or approved by the Supervisor of Records under a petition under G. L. c. 66, § lO(d)(iv). See G. L. c. 66, § lO(d)(ii); 950 C.M.R. 32.06(4). The Office's October 211d and November JS1 responses In its October 2, 2019 response, the Office states that it" ... has identified approximately 1,500 pages of records potentially responsive to request no. 2, and subject to disclosure under the Public Records Law, G.L. c. 66. The records are comprised of Business Requirement Documents· (BRDs) dating back to 2014. EOHHS persom1el must review these records for responsiveness and applicable privileges and exemptions, and then make necessary redactions, as required by law .... Potential exempt material includes cyber security and technical architecture information protected from disclosure pursuant to G. L. c. 4, § 7 (26)(n)." The Office provided a fee estimate indicating that "[it] estimates sixty (60) hours of personnel time for reviewing and redacting .... The number of hours has been calculated by estimating an average review and redaction rate of 25 pages per hour (1,500 + 25=60) due to the level of detail within the requested documents." The Office explains that" ... the 60 hours will be attributed to reviewing and redacting records as required by law. EOHHS has already expended four (4) hours responding to this PRR, including searching for and identifying responsive records and developing this fee estimate. Accordingly, at a rate of $25 per hour, the estimated fee for reviewing and redacting potentially responsive records for request no. 2 is $1,500.00 (60 hours x $25 = $1,500.00)." The Office further suggests that Ms. Pulos contact it if she prefers to narrow or modify her request in order to reduce the cost of producing the records. Upon receipt of this response, Ms. Pulos, on October 8, 2019, revised her request and requested the following:

Alexander deBlieck SPR20/0166 Page 3 February 11, 2020 1. Time period. I am only seeking information about the verification requirements that are currently in use by the hCentive/HIX system. There is no need to go back to documents from 2014 that have been superseded. 2. Document production. I am interested in understanding certain kinds of information contained in the BRD but do not require production of those portions of the BRD that are not relevant to the information I am seeking. I am seeking Information about the following: a. Is the HIX system able to verify the current amount of income from Social Security benefits from Social Security data sources (including those accessed through the federal data services hub)? b. Once the current amount of income from Social Security benefits is verified from Social Security data sources, what use does the system make of that information? c. In what circumstances does the system generate a "Request for Information" to an applicant or recipient to prove the current amount of income from Social Security benefits? d. When is the current amount of income from Social Security benefits considered "reasonably compatible" with federal data sources? e. When does the system determine that a MassHealth recipient with income from Social Security benefits can have his or her continuing eligibility determined without requiring information from the individual? f. How does the presence or absence of income data from the IRS affect whether an individual with current income from Social Security benefits will be issued a Request for Information to prove the current amount of income from Social Security? g. If identifying information of an applicant or MassHealth beneficiary with current income from Social Security benefits does not match tax records on file with IRS, in what circumstances does HIX generate a Request for Info1mation to prove the current amount of income from Social Security benefits? h. On or about March 1 of each year does the HIX system redetermine eligibility for beneficiaries with income from Social Security benefits and, if so, in what circumstances does it generate a Request for Information to prove the current amount of income from Social Security benefits? The Office responded on November 1, 2019, indicating that Ms. Pulos, on October gth " ... withdrew request no. 2 and in turn requested answers to specific questions. It is EOHHS' understanding these questions were answered at a MassHealth advocates meeting." In a letter dated November 7, 2019, Ms. Pulos informed the Office that she narrowed her request based on the Office's suggestion in its October 2nd response. Ms. Pulos also noted that "[w]hile the subject of [her] record request has been discussed at several meetings with MassHealth officials, none of the meetings involved the distribution of any documents." Neither has the requested information been fully addressed at any of the meetings she has attended.

Alexander deBlieck SPR20/0166 Page 4 February 11, 2020 Receiving no response from the Office, Ms. Pulos appealed. In her appeal petition, Ms. Pulos claims that the Office" ... has not supplied the requested records for Request No. 2 as revised by my email of October 8, 2019 or claimed that the requested records are exempt from disclosure. The records I am seeking are public records within the meaning of G.L. c. 66 § 10 and G.L. c. 4 § 7 and not subject to any exemption." While this appeal was pending, the Public Records Division was notified in a letter dated February 10, 2020, that the Office is searching for and compiling records responsive to Ms. Pulos' modified request, and intends on providing her with a response by February 14, 2020. Conclusion Accordingly, the Office is ordered to provide Ms. Pulos with a response, provided 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. Ms. Pulos may appeal the substantive nature of the Office's response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, ~u~ Supervisor of Records cc: Victoria Pulos