Colman Herman v. Executive Office of Elder Affairs (SPR 20201954)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 27, 2020 SPR20/1954 Lesley Moreau Executive Office of Elder Affairs One Ashburton Place, Room 517 Boston, MA 02108 Dear Ms. Moreau: I have received the petition of Colman Herman appealing the response of the Executive Office of Elder Affairs (Office/EOEA) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on August 16, 2020, Mr. Herman requested the following records: 1) 12/14/18 letter from ACL to EOEA 2) ACL final proposal 3) ACL LTCOP ALO Background 4) EOEA’s proposed changes to 651 CMR 6.00 5) April 8, 2019 correspondence from [an identified individual] of ACL to [an identified individual] of EOEA, as cited in the attached 7/26/19 letter . . . 6) Memorandum of understanding that EOEA executed with the Executive Office Office of Health and Human Services 7) Legislation introduced regarding the long-term care ombudsman program[.] On October 9, 2020, the Office provided a response, including certain responsive records. The Office withheld potions of the records pursuant to Exemption (d) of the Public Records Law. G. L. c. 4, § 7(26)(d). Unsatisfied with the Office’s response, Mr. Herman petitioned this office and this appeal, SPR20/1954, 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, § 10A(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). 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

Lesley Moreau SPR20/1954 Page 2 October 27, 2020 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, § 10(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 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, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Office’s October 9th response In its October 9, 2020 response, the Office enclosed records responsive to items 1, 2, 3, 5 and 7. However, the Office withheld records responsive to items 4 and 6 under Exemption (d). 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). Under Exemption (d), the Office states that records responsive to items 4 and 6 “. . . ha[ve] been withheld in order to protect the integrity of policies under development.” Based on the Office’s response it is unclear how the records constitute inter-agency or intra-agency records. Neither is it certain from the Office’s response what policy positions are being developed nor how disclosure would taint the deliberative process. Further, I find the Office must clarify whether the withheld records contain any factual information that can be segregated from the responsive records, as Exemption (d) does not apply to such information.

Lesley Moreau SPR20/1954 Page 3 October 27, 2020 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). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Conclusion Accordingly, the Office is ordered to provide Mr. Herman with a response to the request, 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Colman Herman