John La Liberte v. Executive Office of Health & Human Services (SPR 20231586)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 21, 2023 SPR23/1586 Belinda Bernard Records Access Officer Executive Office of Health and Human Services One Ashburton Place Boston, MA 02108 Dear Ms. Bernard: I have received the petition of John C. La Liberte, Esq., of the Pioneer Institute, appealing the response of the Executive Office of Health and Human Services (EOHHS) to his request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 18, 2023, Attorney La Liberte requested the following: [1.] Any prescription drug pricing or value or cost effectiveness model or other methodology employed by EOHHS and/or MassHealth to determine the proposed supplemental rebate, discount or proposed value with respect to drug products pursuant to M.G.L. c. 118E, §12A, whether or not such model or methodology was developed in whole or in part by EOHHS or any third party (including without limitation the Institute for Clinical and Economic Review (‘ICER’)); [2.] Any communications between EOHHS or MassHealth and any third party (including without limitation ICER) that is in any way related to any methodology referenced in Paragraph (1) above; [3.] Any communications between EOHHS or MassHealth and any employee of or contractor to the Health Policy Commission that is in any way related to any methodology referenced in Paragraph (1) above; and [4.] Any communication to or from EOHHS or MassHealth concerning in any way the use of Quality Adjusted Life Years (‘QALYs’) as a measure of health outcomes or clinical cost effectiveness relative to any methodology referenced in Paragraph (1) above. EOHHS provided a response on May 2, 2023, which included a fee estimate. Unsatisfied 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

Belinda Bernard SPR23/1586 Page 2 July 21, 2023 with the response, Attorney La Liberte petitioned this office and this appeal, SPR23/1586, 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(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. EOHHS’ May 2nd response In its May 2, 2023 response, EOHHS stated the following: In response to a prior public records request received from your office, dated February 22, 2022, EOHHS identified four (4) documents responsive to your request for the time period July 1, 2019 to February 22, 2022, and determined those records are exempt from public disclosure, pursuant to G.L. c. 4, § 7 (26)(a) (‘Exemption (a)’) and G.L. c. 4, § 7 (26)(d) (‘Exemption (d)’). EOHHS also charged Attorney La Liberte a fee of $283.75 in order to review an additional 614 potentially responsive documents for “…responsiveness, applicable privileges, and exemptions and then [to] make necessary redactions, as required by law.” 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

Belinda Bernard SPR23/1586 Page 3 July 21, 2023 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. 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). Burden of specificity; segregable portions EOHHS has not met its burden of specificity in claiming Exemptions (a) and (d) to withhold the requested records. Pursuant to the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. G. L. c. 66, § 10(b)(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 . . .”); see also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at

Belinda Bernard SPR23/1586 Page 4 July 21, 2023 511. Furthermore, it is unclear how the requested records can be withheld in their entirety. Please be advised, any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Fee estimate - Agencies An agency may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.05) per page may be assessed for a black and white single or double-sided photocopy of a public record. G. L. c. 66, § 10(d)(i). Agencies may not assess a fee for the first 4 hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested. G. L. c. 66; § 10(d)(ii). Where appropriate, agencies may include as part of the fee an hourly rate equal to or less than the hourly rate attributed to the lowest paid employee who has the necessary skill required to search for, compile, segregate, redact or reproduce a record requested, but the fee shall not be more than $25 per hour. Id. A fee shall not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv). See G. L. c. 66, §10(d)(ii); 950 C.M.R. 32.06(4). Petitions relating to fees must be submitted to the Supervisor within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). EOHHS’ May 2nd fee estimate In its response, EOHHS stated that it intends to charge Attorney La Liberte for 11.35 hours at the rate of $25.00 per hour in order to review an additional 614 potentially responsive documents for “…responsiveness, applicable privileges, and exemptions and then [to] make necessary redactions, as required by law” for a total of $283.75. In support of its fee estimate, EOHHS stated the following: EOHHS may charge an hourly rate equal to or less than the hourly rate attributed to the lowest paid employee who has the necessary skill required to search for, compile, segregate, redact or reproduce a records requested, but the fee shall not be more than $25 per hour. G.L. c. 66, § 10(d)(ii). EOHHS does not have an employee with such necessary skill who is paid less than $25.00 per hour. Pursuant to the Public Records Law, the first four (4) hours of personnel work are free of charge; thereafter, an hourly rate of $25.00 will be charged. G.L. c. 66, § 10(d). 950 CMR 32.07(2).

Belinda Bernard SPR23/1586 Page 5 July 21, 2023 EOHHS estimates 15.35 hours of personnel time will be required to segregate and redact the records for production. The number of hours has been calculated by estimating an average review and redaction rate of 40 documents per hour applied to the estimated 614 records identified (614 ÷40=15.35). The 15.35 hours will be attributed to segregating and redacting records as required by law. With respect to the segregation and redaction of records, prior to production EOHHS conducts a review of all records to determine whether the records, or a portion thereof, are subject to statutory or other protections from public disclosure under the Public Records Law. EOHHS anticipates the records may include information protected from disclosure by law[.] EOHHS stated that it anticipates the redactions will be made under various statutes including the Health Insurance Portability and Accountability Act (“HIPAA”) Privacy Rule, the Massachusetts Fair Information Practices Act (“FIPA”), and 42 U.S.C. §1396R-8(b)(3)(D), as well as attorney-client privilege and Exemption (d) of the Public Records Law. Pursuant to the Public Records Law, a fee may not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv). See G. L. c. 66, § 10(d)(ii); 950 C.M.R. 32.06(4). To the extent that the proposed redactions and segregation will be made under a statute operating through Exemption (a) of the Public Records Law, as well as the attorney-client privilege, I find EOHHS may assess a fee for such redactions. However, it is unclear if the fee assessed includes time needed to redact records under Exemption (d). EOHHS must clarify this matter. Conclusion Accordingly, EOHHS is ordered to provide a response to Attorney La Liberte, 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. Attorney La Liberte may appeal the substantive nature of EOHHS’ response within 90 calendar days. See 950 C.M.R. 32.08(1) Sincerely, Manza Arthur Supervisor of Records cc: John C. La Liberte, Esq.