April Kuehnhoff v. Department of Revenue (SPR 20252284)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 20, 2025 SPR25/2284 Roger H. Randall, Esq. Counsel to the Commissioner Litigation Bureau Department of Revenue 100 Cambridge Street, 7th Floor Boston, MA 02114 Dear Attorney Randall: I have received the petition of April Kuehnhoff, Esq., of the National Consumer Law Center, appealing the response of the Department of Revenue (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 4, 2025, Attorney Kuehnhoff requested “a copy of the Reciprocal Offset Agreement with US Treasury authorized by AP 606.6.” The Department responded on June 6, 2025. Unsatisfied with the Department’s response, Attorney Kuehnhoff petitioned this office, and this appeal, SPR25/2284, was opened as a result. Subsequent to the opening of this appeal, the Department provided a further response to this office and Attorney Kuehnhoff on August 13, 2025. 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 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

Roger H. Randall, Esq. SPR25/2284 Page 2 August 20, 2025 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. Current Appeal In her appeal petition, Attorney Kuehnhoff argues the following: Denial of the PRR was improper because the Commissioner has not made any determination to indicate that production of such an agreement will result in serious impairment as required by G.L. c. 62C, § 21(d). The fact that the document involves a compliance or collection technique is not sufficient to trigger the disclosure prohibition without such a finding. Denial of the PRR was also improper because disclosure of any Reciprocal Offset Agreement with US Treasury will not “seriously impair assessment, collection or enforcement under the tax laws.” Information about reciprocal offset agreements and how offset agreements generally function is already readily available online. For example, The U.S. Treasury Department discusses its State Reciprocal Program to offset “non-tax federal payments for delinquent debt owed to state agencies” on its website . . . and in federal regulations. 31 C.F.R. §§ 285.1(b)-(c), 285.6. Additionally, Massachusetts DOR Administrative Procedure 606.6 also specifically authorizes the Commissioner and the Office of the State Comptroller “to enter into a Reciprocal Offset Agreement with the Secretary of the Treasury and to . . . submit state tax liabilities to be offset against federal payments to vendors and contractors; federal agencies will submit federal nontax liabilities to be offset against tax refunds due to Commonwealth taxpayers.” Producing the offset agreement itself will not provide information to avoid DOR collection via tax refund offsets beyond what is already available online. The Department’s June 6th and August 13th Responses In its June 6, 2025 and August 13, 2025 responses, the Department cites G. L. c. 62C, § 21(d), as it operates through Exemption (a) of the Public Records Law, for withholding a responsive record. See G. L. c. 4, § 7(26)(a). 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

Roger H. Randall, Esq. SPR25/2284 Page 3 August 20, 2025 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, 154 (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. In its June 6th response, the Department cites G. L. c. 62C, § 21(d), which provides in pertinent part as follows: The confidentiality provisions and the prohibition as to disclosure contained in this section shall apply to standards used or to be used for the selection of tax returns for examination, data used or to be used for determining such standards and such other materials as reflect audit or compliance selection criteria, audit issue criteria or audit, compliance and collection techniques, if the commissioner determines that disclosure will seriously impair assessment, collection or enforcement under the tax laws. G. L. c. 62C, § 21(d). The Department also cites its Administrative Procedures, which provide in pertinent part as follows: 606.6. Treasury Offset Program – Reciprocal Offset Program The Commissioner, along with the Office of the State Comptroller, is authorized to enter into a Reciprocal Offset Agreement with the Secretary of the Treasury and to oversee the Agreement as it pertains to state tax liabilities and state tax refunds. Under the Agreement, the Commissioner will submit state tax liabilities to be offset against federal payments to vendors and contractors; federal agencies will submit federal nontax liabilities to be offset against tax refunds due to Commonwealth taxpayers. Please note that there may be a fee associated with the offset.

Roger H. Randall, Esq. SPR25/2284 Page 4 August 20, 2025 DOR Administrative Procedure 606.6. In its June 6th response, the Department argues that “AP. 606.6 authorizes the Commissioner to enter into an Offset Agreement with the U.S. Treasury, However, if any Offset Agreement exists, then it constitutes a compliance or collection technique, and therefore if it exists, it is shielded from disclosure by G.L. chapter 62C, section 21 (d).” In its August 13th response, the Department further argues the following: [T]he Massachusetts Commissioner of Revenue has determined that disclosure of the Reciprocal Offset Agreement will seriously impair collection and enforcement under the tax laws, contrary to [Attorney Kuehnhoff’s] assertion. That determination is all that is required. The fact that DOR Administrative Procedure 606.6 authorizes the Commissioner of Revenue to enter into a reciprocal offset agreement is irrelevant to the shield in section 21(d). The wording of the Administrative Procedure does not authorize disclosure of any offset agreement to the public, and plainly this Offset Agreement with the U.S. Treasury is a technique that the Department of Revenue uses to obtain compliance with Mass. tax law and to achieve collection of taxes owed to the Commonwealth of Massachusetts. . . . The U.S. Treasury is not bound by the statutes of Massachusetts, and the U.S. Treasury may disclose what it chooses without the Commissioner of Revenue having any legal standing to contest such disclosure by the U.S. Treasury. Likewise, any disclosure by the U.S. Treasury does not affect what the Massachusetts Commissioner of Revenue is bound to shield from disclosure in order to maintain effective collection and enforcement under Massachusetts tax law. The U.S. Treasury is not the Mass. Commissioner of Revenue. For these reasons, we do not disclose this or similar agreements that are a technique for collection of tax revenue and enforcement of Mass. tax laws. It is plainly covered by section 21(d). Based on the information provided in the Department’s June 6th and August 13th responses, where the Department has explained that the Reciprocal Offset Agreement is a compliance technique, and has explained that the Commissioner has determined disclosure will seriously impair collection and enforcement under the tax laws, I find that the Department has met its burden to explain how the responsive record is the type of record contemplated under G. L. c. 62C, § 21(d). Consequently, I find that the Department has met its burden to withhold the responsive record under G. L. c. 62C, § 21(d), as it operates through Exemption (a) of the Public Records Law. See G. L. c. 4, § 7(26)(a). Conclusion Accordingly, I will consider this administrative appeal closed. If Attorney Kuehnhoff is not satisfied with the resolution of this administrative appeal, please be advised that this office

Roger H. Randall, Esq. SPR25/2284 Page 5 August 20, 2025 shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, §§ 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: April Kuehnhoff, Esq.