Daniel Nagin v. Executive Office of Health & Human Services - Department of Veterans Services (SPR 20231573)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 24, 2023 SPR23/1573 Michael Walsh, Esq. Administrative Law Counsel Executive Office of Veterans Affairs 600 Washington Street, 2nd Floor Boston, MA 02111 Dear Attorney Walsh: I have received the petition of Attorney Daniel L. Nagin, on behalf of Michael Mimnaugh, appealing the response of the Executive Office of Veterans Affairs (Office/EOVS) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 9, 2023, Attorney Nagin requested the following: [A] complete copy of [a named individual’s] EOVS Chapter 115 file and records. A signed authorization for release of information is already on file with EOVS. This request for records includes, but is not limited to, any and all records reflecting communications from VSOs [Veterans’ Service Officers] and to VSOs and any and all records of any kind that pertain to Chapter 115 benefits. The term “records” includes all documents or communications, whether in electronic or written form, including, but not limited to, data, files, memoranda, reports, analyses, correspondence, facsimiles, e-mails, notes, and audio files or tapes. The Office responded on May 12, 2023, providing numerous responsive records, and citing Exemptions (a), (b), (c), (d), and (n) of the Public Records Law, along with the attorney- client privilege for withholding other records. See G. L. c. 4, § 7(26)(a), (b), (c), (d), (n). Unsatisfied with the Office’s response, Attorney Nagin appealed, and this case was opened as a result. Subsequent to the opening of this appeal, Attorney Nagin provided additional correspondence to this office, and the Office provided supplemental responses on July 11, 2023, and July 17, 2023. Status of the Requestor In his appeal petition, Attorney Nagin states that his office “represents Michael Mimnaugh, a veteran of the U.S. Army and a resident of Massachusetts.” Please note that 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

Michael Walsh, Esq. SPR23/1573 Page 2 July 24, 2023 reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, neither Attorney Nagin’s status, nor that of his client, will play any role in a determination as to whether the records should be disclosed or redacted under the Public Records Law. 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. Att’y 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 Responses In its May 12, 2023 response, the Office provides numerous records, and states that it is “withholding, specifically, processing notes from the VSO, any notes from the hearing officer, attorney-client communications within the department, and additional materials which might undermine the EOVS database.” The Office cites Exemptions (a), (b), (c), (d), and (n) of the Public Records Law, along with the attorney-client privilege for withholding responsive records. See G. L. c. 4, § 7(26)(a), (b), (c), (d), (n). The Office further elaborates on its claims for withholding responsive records in a July 11, 2023 letter, and a July 17, 2023 email to this office and Attorney Nagin. Pending Litigation 950 C.M.R. 32.08(2)(b) provides in pertinent part: the Supervisor may deny an appeal for, among other reasons if, in the opinion of the Supervisor:

Michael Walsh, Esq. SPR23/1573 Page 3 July 24, 2023 1. the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation. In its July 11, 2023 response, the Office states “that this matter is under active litigation in both the Superior Court and in an administrative proceeding before EOVS.” The Office describes the case in Worcester Superior Court as “centering on blame for the delays in Mr. Mimnaugh’s benefit payment” and states that in the EOVS appeal “the Petitioner declined asserting a continued entitlement to retroactive benefits.” Based on the information provided in the Office’s response, it is my understanding that the records at issue in this appeal are not the subjects of disputes in active litigation and administrative hearings. Accordingly, I will proceed to address the Office’s claims for withholding responsive records. Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7(26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public’s right to inspect records under the Public Records Law is restricted. See Att’y Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either “shall not be a public record,” “shall be kept confidential” or “shall not be subject to the disclosure provision of the Public Records Law.” The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. Under Exemption (a), in its May 12, 2023 response, the Office cites G. L. c. 115, § 3B(f), which provides in pertinent part:

Michael Walsh, Esq. SPR23/1573 Page 4 July 24, 2023 Veterans’ benefits and services officers or agents shall not disclose any information transmitted in confidence by and between a veteran and a veterans’ benefits and services officer or agent, except as follows: (i) when the disclosure is made for the benefit of the veteran; (ii) the disclosure is reasonably necessary to assist the veteran; or (iii) under a lawful order to make such disclosure. For the purposes of this subsection, information received by a veterans’ benefits and services officer or agent which arises out of and in the course of providing assistance shall include, but not be limited to, communications, reports, records, working papers or memoranda. G. L. c. 115, § 3B(f). Additionally, in an email to this office on July 17, 2023, the Office cites G. L. c. 66, § 18, which provides in pertinent part: This chapter [G. L. c. 66] shall not apply to the records of the general court, nor shall declarations, affidavits and other papers filed by claimants in the office of the secretary of veterans’ services or records kept by the secretary for reference by the officials of his office, be public records. G. L. c. 66, § 18. In its May 12th response, under G. L. c. 115, § 3B(f), the Office argues that “of the withheld records, several of them are expressly (G. L. c. 115 §3B(f)) or impliedly exempt from disclosure.” In its July 17th response, the Office argues that G. L. c. 66, § 18 “substantially exempts EOVS from a significant reach of the public records law, consistent with similar existing federal law.” Based on the information provided in the Office’s responses, it is unclear how the withheld records are the types of records contemplated under the statutes cited above. The Office must clarify this. The Office is advised that under the Public Records Law, the burden shall be on the custodian to establish the applicability of an exemption to withhold or redact records. In this case the Office’s response did not contain the specificity required in a denial of access to public records. See G. L. c. 66, § 10(b)(iv) (a 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”). See also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511; 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).

Michael Walsh, Esq. SPR23/1573 Page 5 July 24, 2023 Exemption (b) Exemption (b) permits the withholding of records that are: Related solely to internal personnel rules and practices of the government unit, provided however, that such records shall be withheld only to the extent that proper performance of necessary governmental functions requires such withholding G. L. c. 4, § 7(26)(b). There are no authoritative Massachusetts decisions interpreting Exemption (b). The general purpose of the cognate federal exemption is to relieve agencies of the burden of assembling and maintaining for public inspection materials in which the public cannot reasonably be expected to have an interest. See Dep’t of the Air Force v. Rose, 425 U.S. 352, 362-70 (1976) (interpreting the federal Freedom of Information Act, which provides an exemption for records which are “related solely to the internal personnel rules and practices of an agency”); see also Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 432 (1983) (Massachusetts Public Records Law modeled on federal Freedom of Information Act). The courts have interpreted the federal exemption to allow withholding of materials that, if released, could cause agency rules or regulations to be circumvented. See Fiumara v. Higgins, 572 F. Supp. 1093, 1102 (1983) (internal codes are exempt where disclosure may enable outsiders to circumvent agency functions). The analysis employed by the federal courts requires a two-pronged test. Material is exempt if it is predominantly used internally and if disclosed would significantly risk circumvention of agency regulations and statutes. See Marrera v. United States Dep’t of Justice, 622 F. Supp. 51, 55 (D.D.C. 1985) (Bureau of Prisons access and identity codes were properly withheld as materials in which the public would have no legitimate interest or which would compromise security if disclosed). In its May 12th response, the Office argues that “of the withheld records, a number of them are internal processing notes and procedures, and are exempt from disclosure.” In this case, the Office has not demonstrated that the “internal processing notes and procedures” are solely related to internal personnel rules and practices of the government unit. Additionally, the Office has not explained whether such records are predominantly used internally, and it is unclear how such records would significantly risk circumvention of agency regulations and statutes. Therefore, the Office has not met its burden to withhold the responsive records under Exemption (b). Exemption (c) Exemption (c) applies to:

Michael Walsh, Esq. SPR23/1573 Page 6 July 24, 2023 personnel and medical files or information and any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy; provided, however, that this subclause shall not apply to records related to a law enforcement misconduct investigation G. L. c. 4, § 7(26)(c). Medical information that is of a personal nature and relates to a specifically named individual may be exempt from disclosure. Brogan v. School Comm. of Westport, 401 Mass. 306, 308 (1987); Globe Newspaper Co., 388 Mass. at 438. Generally, medical information is sufficiently personal to warrant exemption. Globe Newspaper Co., 338 Mass. at 432-34. There is a strong public policy in Massachusetts that favors confidentiality as to medical data about a person’s body. Globe Newspaper Co. v. Chief Med. Exam’r, 404 Mass. 132, 135 (1987). Analysis under Exemption (c) is subjective in nature and requires a balancing of the public’s right to know against the relevant privacy interests at stake. Torres v. Att’y Gen., 391 Mass. 1, 9 (1984); Att’y Gen. v. Assistant Comm’r of Real Property Dep’t., 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case by case basis. This exemption does not protect all data relating to specifically named individuals. Rather, there are factors to consider when assessing the weight of the privacy interest at stake: (1) whether disclosure would result in personal embarrassment to an individual of normal sensibilities; (2) whether the materials sought contain intimate details of a highly personal nature; and (3) whether the same information is available from other sources. See People for the Ethical Treatment of Animals (PETA) v. Dep’t of Agric. Res., 477 Mass. 280, 292 (2017). When analyzing a privacy claim, there is a balancing test which provides that where the public interest in obtaining the requested information substantially outweighs the seriousness of any invasion of privacy, the private interest in preventing disclosure must yield. PETA, 477 Mass. at 291. The public has a recognized interest in knowing whether public servants are carrying out their duties in a law abiding and efficient manner. Id. at 292. Under Exemption (c), in its May 12th response, the Office argues “that the withheld portions of records are useful in making decisions about core employments matters regarding EOVS personnel and those under EOVS supervision. The expectation of privacy which EOVS supervised personnel have in their material in [sic] unquestionable.” In its July 11th response, the Office further argues that “VSOs are subject to EOVS supervision, use EOVS forms and databases, and clearly are local EOVS outposts in cities and towns. The VSOs are not conceptually different from EOVS for purposes of Exemption B, C, or D.” Based on the Office’s responses, it is unclear how the responsive records constitute one of the core categories of personnel information useful in making employment decisions regarding an employee. It is additionally uncertain how the records contain intimate details of a highly personal nature, or how disclosure would result in personal embarrassment to an individual of normal sensibilities. Further, the Office did not provide information with respect to

Michael Walsh, Esq. SPR23/1573 Page 7 July 24, 2023 the balancing test, which examines whether the public interest in obtaining the requested information outweighs the seriousness of any invasion of privacy. PETA, 477 Mass. at 292. The Office must clarify these matters. 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. Prot. Agency v. Mink, 410 U.S. 73, 89 (1973) (purely factual matters used in the development of government policy are subject to disclosure). In its May 12th response, the Office argues that “this exemption commands the nondisclosure of internal EOVS memos and working papers between [the Office] and the Town relating to positions being considered or revised.” Based on the Office’s response, I find the Office has not met its burden to withhold the responsive records pursuant to Exemption (d). In particular, the Office has not demonstrated that a deliberative process remains “ongoing and incomplete” as required by Exemption (d). See Babets, 403 Mass. at 237 n.8 (“this exemption protects such documents from disclosure only while policy is ‘being developed,’ that is, while the deliberative process is ongoing and incomplete”). Exemption (n) Exemption (n) applies to: records, including, but not limited to, blueprints, plans, policies, procedures and schematic drawings, which relate to internal layout and structural elements, security measures, emergency preparedness, threat or vulnerability assessments, or any other records relating to the security or safety of persons or buildings, structures, facilities, utilities, transportation, cyber security or other infrastructure located within the commonwealth, the disclosure of which, in the reasonable

Michael Walsh, Esq. SPR23/1573 Page 8 July 24, 2023 judgment of the record custodian, subject to review by the supervisor of public records under subsection (c) of section 10 of chapter 66, is likely to jeopardize public safety or cyber security. G. L. c. 4, § 7(26)(n). Exemption (n) allows for the withholding of certain records which if released would jeopardize public safety. The first prong of Exemption (n) examines “whether, and to what degree, the record sought resembles the records listed as examples in the statute;” specifically, the “inquiry is whether, and to what degree, the record is one a terrorist ‘would find useful to maximize damage.’” People for the Ethical Treatment of Animals (PETA) v. Dep’t of Agric. Res., 477 Mass. 280, 289-90 (2017). The second prong of Exemption (n) examines “the factual and contextual support for the proposition that disclosure of the record is ‘likely to jeopardize public safety.’” Id. at 289-90. The PETA decision further provides that “[b]ecause the records custodian must exercise ‘reasonable judgment’ in making that determination, the primary focus on review is whether the custodian has provided sufficient factual heft for the supervisor of public records or the reviewing court to conclude that a reasonable person would agree with the custodian’s determination given the context of the particular case.” Id. PETA also provides that “[t]hese two prongs of exemption (n) must be analyzed together, because there is an inverse correlation between them. That is, the more the record sought resembles the records enumerated in exemption (n), the lower the custodian’s burden in demonstrating ‘reasonable judgment’ and vice versa.” PETA, at 290. In its May 12th response, under Exemption (n), the Office argues that “to the extent that disclosure of materials could threaten the integrity and cyber security of EOVS’s database, some materials are properly withheld.” Based on the Office’s response, the Office has not met its burden to withhold responsive records under Exemption (n). Specifically, it is unclear how the withheld records resemble the records listed under Exemption (n). See PETA, at 289. Where the records bear little resemblance to the types listed in the statute, the burden on the custodian is correspondingly at its highest. See id. at 290-91. Further, the Office has not provided sufficient information to conclude that a reasonable person would agree that disclosure of the record is “likely to jeopardize public safety or cyber security” as required by Exemption (n). Id. at 290-91. Common Law Attorney-Client Privilege A records custodian claiming the attorney-client privilege under the Public Records Law has the burden of not only proving the existence of an attorney-client relationship, but also (1) that the communications were received from a client during the course of the client’s search for legal advice from the attorney in his or her capacity as such; (2) that the communications were made in confidence; and (3) that the privilege as to these communications has not been waived.

Michael Walsh, Esq. SPR23/1573 Page 9 July 24, 2023 See Suffolk Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444, 450 n.9 (2007); see also Hanover Ins. Co. v. Rapo & Jepsen Ins. Servs., 449 Mass. 609, 619 (2007) (stating that the party seeking the attorney-client privilege has the burden to show the privilege applies). Records custodians seeking to invoke the common law attorney-client privilege “are required to produce detailed indices to support their claims of privilege.” Suffolk, 449 Mass. at 460. Pursuant to the Public Records Law, in assessing whether a records custodian has properly withheld records based on the claim of attorney-client privilege, the Supervisor of Records “shall not inspect the record but shall require, as part of the decision making process, that the agency or municipality provide a detailed description of the record, including the names of the author and recipients, the date, the substance of such record, and the grounds upon which the attorney-client privilege is being claimed.” G. L. c. 66, § 10A(a). In its May 12th response, the Office provides the following description of the records withheld under attorney-client privilege: The attorney-client communications within the department relate to how to process [Attorney Nagin’s] case, the availability of materials requested, policy development on enforcement mechanisms under the statute and their use, discussions of the how to deal with recalcitrant VSOs and municipalities, the breadth of law on domicile, the likelihood of success of [Attorney Nagin’s] client, the possibility of waiving administrative appeal deadlines, the sufficiency of benefits available to your client, and the possibility of using civil investigative demands and how to arm VSOs to use their statutory tools. Additionally, the Office provided Attorney Nagin with “a five-page, hand-typed list of all emails relating to Mr. Mimnaugh, both those including his name and those inferentially about him.” Based on the Office’s response, it is unclear which specific records have been redacted or withheld pursuant to the attorney-client privilege. Specifically, the Office must provide an index comprised of a detailed description of each record withheld or redacted pursuant to the attorney- client privilege, including the names of the author and recipients, the date, the substance of each record, and the grounds upon which the privilege is being claimed. See G. L. c. 66, § 10A(a). Conclusion Accordingly, the Office is ordered to provide Attorney Nagin with a response to his request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us.

Michael Walsh, Esq. SPR23/1573 Page 10 July 24, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Daniel L. Nagin, Esq.