Mike Ruppel v. Massachusetts Health Connector (SPR 20220551)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 16, 2022 SPR22/0551; SPR22/0563 Andrew R. Egan, Esq. General Counsel Health Connector 133 Portland Street Boston, MA 02114 Dear Attorney Egan: I have received the petition of Mike Ruppel appealing the response of the Mass Health Connector (Connector) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 16, 2022, Mr. Ruppel requested: Documentation on the process for scheduling tax penalty appeals which covers[:] 1. The time by which they are expected to be scheduled after the receipt of the “Statement of Grounds[;]” 2. In what order the appeals are scheduled (i.e. in the order received, based on appeal amount, complexity of the appeal etc.)[;] 3. Documentation of any applicable exceptions to the normal appeal scheduling process where an appeal might be scheduled either earlier, or later than other appeals[, and;] 4. Documentation of how the numbering scheme works. For example, is it accurate to state that PA20-1 would be the first “Statement of Grounds” received by the appeals unit related to tax year 2020 and PA20-2 the second, PA20-3 the third and so on? Further, on February 16th, Mr. Ruppel inquired, “When the 2020 [Tax Penalty Appeals] will be posted online?” The Connector initially responded to Mr. Ruppel’s inquiry on February 16th and to Mr. Ruppel’s request on February 22, 2022, respectively. Unsatisfied with the Connector’s responses, Mr. Ruppel petitioned this office and these appeals, SPR22/0551 and SPR22/0563, were 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

Andrew R. Egan, Esq. SPR22/0551; SPR22/0563 Page 2 March 16, 2022 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 agency or municipality 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. The Connector’s February 16th and February 22nd Responses With respect to Mr. Ruppel’s inquiry regarding whether the Connector would post the 2020 Tax Penalty Appeals on its website, on February 16, 2022, the Connector stated, “the Health Connector will not be publishing 2020 tax year penalty appeal decisions on its website.” With respect to Mr. Ruppel’s request for the four categories of records regarding the process for scheduling Tax Penalty Appeals, on February 22, 2022, the Connector stated: The Health Connector has reviewed its records and has determined that it does not possess any records that are responsive to your request…Your emails indicate that you intend to submit follow-up questions and requests. Please be advised that the Health Connector will regard the request you submitted on February 16, 2022, and any follow-up requests related to it…to be part of a single request. This is for purposes of estimating the total time necessary to respond to the request, and, if applicable, any fees that may be associated with responding to the request. Current Appeals Mr. Ruppel’s February 16th Inquiry In his appeal regarding whether the Connector will post the 2020 Tax Penalty Appeals on its website, Mr. Ruppel stated, “If I am reading 950 CMR 32.05(f) correctly, I believe these must be provided on a searchable website as electronic copies because they are ‘final opinions, decisions, orders, or votes from agency proceedings’ and ‘notices of hearings.’ Please advise if I am misinterpreting this regulation.” In compliance with the Public Records Law, the Supervisor of Records may only issue

Andrew R. Egan, Esq. SPR22/0551; SPR22/0563 Page 3 March 16, 2022 determinations where a violation of G. L. c. 66, § 10 has occurred. G. L. c. 66, § 10A(a). Given that no violation of G. L. c. 66, § 10 has been asserted by Mr. Ruppel regarding this respective request, I am unable to issue a determination on this matter at this time. However, please be aware that pursuant to G. L. c. 66, § 19(b): Every agency shall provide on a searchable website electronic copies, accessible in a commonly available electronic format, of the following types of records, provided that any agency may withhold any record or portion thereof in accordance with state or federal law: (i) final opinions, decisions, orders, or votes from agency proceedings. Mr. Ruppel’s February 16th Records Request With respect to his appeal regarding the process for scheduling Tax Penalty Appeals and in response to the Connector’s February 22, 2022 response, Mr. Ruppel stated, “please advise if you intended [the February 22nd response] to be your response under M.G.L. c. 66, § 10(b)[.]” On February 23, 2022, the Connector clarified by stating, “for the avoidance of doubt, the Health Connector does not control or possess documentation on the process for scheduling tax penalty appeals which covers [all four categories in your request]…” On February 23, 2022, Mr. Ruppel responded by stating: In regards to the obligation to work with me to modify the request to obtain what I am looking for, I want to be clear. Are you saying there are no policies, procedures, training materials, or any documents at all which would answer the broad question “How would an appeal unit employee know what procedures to follow when scheduling a tax penalty appeal?” as opposed to that there is not a singular record which exactly captures each and every point I noted[?] On February 25, 2022, the Connector responded by stating: In your email on [February 23rd] you stated that you are looking for policies, procedures, training materials, or any documents which would answer the broad question “How would an appeal unit employee know what procedures to follow when scheduling a tax penalty appeal?” This would be a broader request than the records you have requested so far. Please confirm whether you are broadening your request to include policies, procedures, training materials, or any documents which would answer the broad question “How would an appeal unit employee know what procedures to follow

Andrew R. Egan, Esq. SPR22/0551; SPR22/0563 Page 4 March 16, 2022 when scheduling a tax penalty appeal?” That same day, Mr. Ruppel responded by stating: My request always was policies and procedures related to scheduling an appeal and I included specific items I was looking for, as part of the initial phase where we work together to modify the request to obtain what I am looking for, which is policies and procedures covering those points. Understandably these could be in multiple documents. That same day, the Connector responded by stating: Your initial request was of narrower scope than your updated request. As has been stated to you, the Health Connector does not possess records that are responsive to your initial request… The Health Connector understood that you were requesting records related to those matters and therefore did not need to clarify your request… Please confirm you that you are in fact requesting policies, procedures, training materials, or any documents which would answer the broad question “How would an appeal unit employee know what procedures to follow when scheduling a tax penalty appeal?” That same day, Mr. Ruppel stated: Ok got it, thank you for clarifying. If there are no documents which would cover the points I noted, there is no reason to produce any documents… However, in fact, you are stating that those points are not covered by ANY records possessed or controlled by the Health Connector as your most recent reply indicates. In his appeal, Mr. Ruppel stated, “The Health Connected failed to work with me to modify the request…The records I am looking for are any policies, procedures, emails, training documents etc. which might cover the items I am looking for.” Reasonable Description of Records Sought A request for records must reasonably describe the records sought. See G. L. c. 66, § 10(a)(i). In Chawla, the Superior court found that under the Public Records Law “[t]he reasonable description requirement contemplates that a requesting party will identify documents or categories of documents with sufficient particularity that government employees will be able to understand exactly what they are looking for, and then make a prompt production.” See Jaideep Chawla v. Dept of Revenue, Suffolk. Sup. No. 1784CV02087, at 2 (January 23, 2019). The court further indicated “[r]equests for documents that are articulated with very broad language that calls upon non-lawyer administrative personnel to interpret the scope of what is sought, and then make fine judgments about what documents are and are not sufficiently ‘related’ to the category of materials requested, will not satisfy this statutory standard.”

Andrew R. Egan, Esq. SPR22/0551; SPR22/0563 Page 5 March 16, 2022 Mr. Ruppel is reminded that a requestor may petition the Supervisor of Records (Supervisor) only after a written request has been made to the records access officer (RAO) of the governmental entity that creates or receives the records. 950 C.M.R. 32.01(1). Additionally, the written request must reasonably describe the public records sought. Id. Whereas the request for “any policies, procedures, emails, training documents etc. which might cover [the four categories of records]” was made in his appeal to the Supervisor and not directly to the Connector’s RAO in Mr. Ruppel’s original request, I decline to opine on that matter. If Mr. Ruppel would like to obtain copies of these records, he may wish to clarify his request in order to reasonably describe the requested records. G. L. c 66, § 10(a)(i) (the request must reasonably describe the public record sought). Alternatively, Mr. Ruppel may make a separate public records request to the Connector’s RAO. Mr. Ruppel may then appeal the substantive nature of the Connector’s response within ninety calendar days. See 950 C.M.R. 32.08(1). This office encourages Mr. Ruppel and the Connector to continue communicating to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii) (an agency shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the municipality to produce the records sought more efficiently and affordably). Conclusion Accordingly, I will consider this administrative appeal closed. If Mr. Ruppel is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 10(b) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Rebecca S. Murray Supervisor of Records cc: Mike Ruppel