Victoria Pulos v. Executive Office of Health & Human Services (SPR 20231593)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 25, 2023 SPR23/1593 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 Victoria Pulos, Esq., of the Massachusetts Law Reform Institute, appealing the response of the Executive Office of Health and Human Services (Office/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 Pulos requested the following: 1. Documents related to MassHealth’s request for Section 1902(e)(14) waiver authority including the waiver request, correspondence with CMS, and the CMS approval. 2. The Massachusetts “Renewal Redistribution Plan” and “Systems Readiness Artifacts (Testing and Configuration Plans)” that the Medicaid agency was required to submit to CMS by Feb 15, 2023. Key Dates Related to the Medicaid Continuous Enrollment Condition Provisions in the Consolidated Appropriations Act, 2023. 3. The contract between EOHHS and Lexis-Nexis to identify addresses for MassHealth members and any other document describing the methodology employed by Lexis Nexis to measure the probability that an address identified by it that differed from the address on file with MassHealth is the correct address (including any separate record of differences based on address discrepancies that would not change the address to which mail is delivered such as nine-digit vs four-digit zip codes or street designations spelled out rather than abbreviated). 4. Documents recording the total number of individuals whose addresses were changed based on data supplied by Lexis-Nexis (including any separate record 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 SPR23/1593 Page 2 July 25, 2023 of changes based on address discrepancies that would not change the address to which mail is delivered such as nine-digit vs four-digit zip codes or street designations spelled out rather than abbreviated). The Office provided a response on April 13, 2023, and indicated that it was withholding responsive records to Item 2 pursuant to Exemption (d) of the Public Records Law. Unsatisfied with the Office’s response to Item 2, Attorney Pulos petitioned this office and this appeal, SPR23/1593, 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. The Office’s April 13th response Regarding Item 2, the Office stated the following; In response to [Item 2], EOHHS encloses one (1) PDF documents. EOHHS withholds one (1) record, FPL Annual Update & COVID Unwind Test Plan (“Test Plan”), pursuant to G. L. c. 4, § 7 (26)(d) (exemption for policy development) (“Exemption (d)”). The record is subject to change pending the Centers for Medicare & Medicaid Services’ (CMS) review. EOHHS withholds the record in order to protect the integrity of policies under development. Once finalized and approved by CMS, the Test Plan will no longer be subject to Exemption (d) but may be subject to other exemptions and protections from disclosure. Current Appeal In her current appeal, Attorney Pulos claimed that the Office did not meet its burden under Exemption (d) and stated the following:

Belinda Bernard SPR23/1593 Page 3 July 25, 2023 The Unwind Test Plans are not exempt from disclosure under the deliberative process exemption which applies to inter-agency memoranda relating to policy positions being developed by the agency, but not to reasonably completed factual studies or reports on which such policy positions may be based. G.L. C.4 §7 (26) (d) The Unwind Test Plan is not describing policy under development, but rather a process that MassHealth implemented on April 1, 2023 that applies to its 2.4 million members now and over the next 12 months. Further, the content of the document is less a policy memorandum than a factual assessment of system readiness for the resumption of Medicaid renewals after a 3 year hiatus related to the COVID-19 pandemic[.] 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). It is unclear from the Office’s response what deliberative process remains ongoing or what legal or policy matters may be involved. Accordingly, I find the Office has not met its burden to withhold the responsive record pursuant to Exemption (d). It is additionally uncertain how disclosure of the record would taint any ongoing deliberative process. Further, the Office is advised that any portions of the record that contain any factual information which can be segregated from the responsive record are subject to mandatory disclosure as Exemption (d) does not apply to such information. G. L. c. 66, § 10(a); see also 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). It is unclear whether such segregable portions exist in the responsive records. The Office must clarify these matters.

Belinda Bernard SPR23/1593 Page 4 July 25, 2023 Conclusion Accordingly, the Office is ordered to provide a response to Attorney Pulos, 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 Pulos may appeal the substantive nature of Office’s response within 90 calendar days. See 950 C.M.R. 32.08(1) Sincerely, Manza Arthur Supervisor of Records cc: Victoria Pulos, Esq.