Colman Herman v. Executive Office of Elder Affairs (SPR 20202239)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 2, 2020 SPR20/2239 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[.] Previous appeals The requested records were the subject of previous appeals. See SPR20/1717 Determination of the Supervisor of Records (September 30, 2020) and SPR20/1954 Determination of the Supervisor of Records (October 27, 2020). In my October 27th determination, I found the Office had not met its burden of specificity in claiming Exemption (d) to withhold certain responsive records from disclosure. Subsequently, on November 16, 2020, the Office provided a response which contains additional information regarding its Exemption (d) claim. Unsatisfied with the Office’s response, Mr. Herman petitioned this office and this appeal, SPR20/2239, was opened as a result. 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 SPR20/2239 Page 2 December 2, 2020 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). 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 November 16th response In its November 16, 2020 response, the Office explains that the records “. . . are inter- agency records, which are currently being reviewed and discussed by and between EOEA and the EOHHS. The Withheld Records are in draft form and concern the development of the Statewide Long Term Care Ombudsman Program and compliance with federal regulatory compliance associated with the implementation of the Older Americans Act. The Withheld Records relate to ‘policy positions being developed by the agency,’ as contemplated by M.G.L. c. 4, § 7, sub-paragraphs 26(d).” The Office further explains that “[t]he Withheld Records do not contain factual information that can be segregated and produced. Again, the Withheld Records are in draft form and have not been finalized. Prematurely disclosing draft documents surrounding intra-agency policy development could taint the deliberative process.” 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

Lesley Moreau SPR20/2239 Page 3 December 2, 2020 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. Herman states the following: 7) On November 16, 2020, Elder Affairs did provide additional information for its claim of exemption (d), but it fails. It fails because on August 16, 2019, Elder Affairs provided the two withheld documents [EOEA’s proposed changes to 651 CMR 6.00 and Memorandum of understanding that EOEA executed with the Executive Office of Health and Human Services] to Deputy Assistant Secretary for Aging Walker, as revealed by a letter dated August 16, 2019 from Elder Affairs Secretary Elizabeth Chen to him. By doing that, Elder Affairs invalidated any claim of exemption (d). . . . Based on Mr. Herman’s claim above, where it appears the Office disclosed the withheld documents to a third party, the Deputy Assistant Secretary for Aging, it is unclear how the records can be withheld under Exemption (d), and how disclosure of the records or any segregable portion thereof, would taint the deliberative process. 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