Wayne Willis v. Executive Office of Health & Human Services (SPR 20221794)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 16, 2022 SPR22/1794 Shara Bedard Records Access Officer Executive Office of Health & Human Services 1 Ashburton Place Room 1109 Boston, MA 02108 Dear Ms. Bedard: I have received the petition of Wayne Willis appealing the response of the Executive Office of Health & Human Services (Office/EOHHS) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 20, 2022, Mr. Willis stated, “I would like to obtain as per a PRR about how to file a Medicaid, and Medicare, fraud claim against the Massachusetts Department of Developmental Services at a state level and at a Federal level. Is there a formal complaint form? Who should I talk to first. Addresses?...” The Office provided a response on July 26, 2022. Unsatisfied with the response, Mr. Willis petitioned this office and this appeal, SPR22/1794, 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 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(d)(iv) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based…”); 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 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

Shara Bedard SPR22/1794 Page 2 August 16, 2022 burden of establishing the applicability of an exemption). 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 July 26th Response In its July 26, 2022 response, the Office states: Please note the Massachusetts Public Records Law, M.G.L. c. 66, § 10 applies to existing records in an agency’s custody, and an agency is not required to answer questions or create a record in response to a requestor’s inquiries….As a courtesy, EOHHS responds to your inquiry below. The Attorney General’s Medicaid Fraud Division investigates and prosecutes health care providers who defraud the Massachusetts Medicaid program, known as MassHealth and reviews reports of abuse against patients in long-term care facilities. Please use the following link to file any claim at the state level: https://www.mass.gov/how-to/file-a-medicaid-fraud-complaint With regard to filing a fraud claim at the Federal level, the Office of the Inspector General (OIG) Hotline Operations accepts tips and complaints from all sources about potential fraud, waste, abuse, and mismanagement in the U.S. Department of Health and Human Services programs. You may wish to submit a hotline complaint here: https://oig.hhs.gov/fraud/report-fraud/. Please be sure to visit “Before You Submit a Complaint” here: https://oig.hhs.gov/fraud/report- fraud/before-you-submit/. No Duty to Answer Questions, Conduct Research Mr. Willis is advised that the duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). However, under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). Where Mr. Willis submitted to the Office questions, I find the Office has no duty under the Public Records Law to answer such questions. Conclusion Whereas the Office has no duty to answer questions, I will now consider this administrative appeal closed. If Mr. Willis is not satisfied with the resolution of this

Shara Bedard SPR22/1794 Page 3 August 16, 2022 administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 10(b). Sincerely, Manza Arthur Supervisor of Records cc: Wayne Willis