Michael Saccone v. Executive Office of Health & Human Services (SPR 20251274)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 13, 2025 SPR25/1274 Hayley Carr, Esq. Assistant General Counsel Executive Office of Health and Human Services 1 Ashburton Place, 11th Floor Boston, MA 02108 Dear Attorney Carr: I have received the petition of Michael Saccone appealing the response of the Executive Office of Health and Human Services (Office) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 11, 2025, Mr. Saccone requested: [1] Results of the Employee Engagement Survey conducted by Gallup for the Massachusetts Commission for the Blind and the Executive Office of Health and Human Services (EOHHS). [2] Any and all reports, presentations, or analyses prepared by Gallup, the Massachusetts Commission for the Blind, or EOHHS that summarize, interpret, or discuss the survey results. [3] Any and all correspondence between Gallup and the Massachusetts Commission for the Blind regarding the survey results[.] The Office responded on May 6, 2025. Unsatisfied with the response, Mr. Saccone petitioned this office and this appeal, SPR25/1274, 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). 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

Hayley Carr, Esq. SPR25/1274 Page 2 May 13, 2025 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 May 7th Response In its May 7, 2025 response, the Office cited Exemption (d) of the Public Records Law to withhold, in their entirety, records responsive to Item 1 of the request. The Office further informed Mr. Saccone that it possessed no records responsive to Items 2 and 3 of the request. Current Appeal In his May 6, 2025 petition to this office, Mr. Saccone contended that the responsive records were factual in nature and therefore not exempt from disclosure under Exemption (d) of the Public Records Law. Further, Mr. Saccone requested confirmation that the Office possesses no records responsive to Items 2 and 3 of his request. In an email communication to this office on May 12, 2025, the Office confirmed that it possessed no records responsive to Items 2 and 3 of the request. 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, §

Hayley Carr, Esq. SPR25/1274 Page 3 May 13, 2025 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 6th response, the Office stated: In response to Item Number 1 of your PRR, EOHHS withholds records regarding the Massachusetts Commission for the Blind results of the Employee Engagement Survey conducted by Gallup, pursuant to G. L. c. 4, § 7 (26)(d) (exemption for policy development) (“Exemption (d)”). EOHHS withholds the records in order to protect the integrity of policies under development. Once finalized and approved the records will no longer be subject to Exemption (d) but may be subject to other exemptions and protections from disclosure. Based on the Office’s response, it is unclear what deliberative process remains ongoing or what legal or policy matters may be involved. Additionally, it is unclertain from the Office’s response how the responsive records are “inter-agency or intra-agency memoranda or letters” as required by Exemption (d). See DOI v. Klamath Water Users Prot. Ass’n, 532 U.S. 1, 4 (2001) (indicating that a requirement for Freedom of Information Act (FOIA) exemption 5 to apply is “its source must be a Government agency”); City of Madison v. United States Dep’t of Justice, 641 F.2d 1036, 1040 (1st Cir. 1981) (finding that documents from a private party are not “intra- agency” under FOIA exemption 5); SPR95/336 Determinations of the Supervisor of Records (August 14, 1995; August 31, 1995) (finding that Exemption (d) does not protect materials submitted to an agency by third parties and only applies to governmental agencies or consultants). The Office must clarify these matters. Consequently, I find that the Office has not met its burden of specificity to withhold the responsive records in their entirety pursuant to Exemption (d). The Office is advised that any information contained in these records that is factual in nature may be subject to disclosure, as Exemption (d) does not apply to such information. Conclusion Accordingly, the Office is ordered to provide Mr. Saccone with a response to the 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. Mr. Saccone may appeal the substantive nature of the Office’s response within ninety days. See 950 C.M.R. 32.08(1).

Hayley Carr, Esq. SPR25/1274 Page 4 May 13, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Michael Saccone