Lanzikos, Paul v. Department of Public Health (SPR 20260663)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 6, 2026 SPR26/0663 Helen Rush-Lloyd Records Access Officer Massachusetts Department of Public Health 250 Washington Street Boston, MA 02108 Dear Ms. Rush-Lloyd: I have received the petition of Paul Lanzikos, of Dignity Alliance Massachusetts, appealing the response of the Department of Public Health (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 29, 2026, Mr. Lanzikos requested: . . . interim and final reports produced by ERG, also known as Eastern Research Group Inc. (“Consultant”), for the Department of Public Health (“DPH”) related to the consulting engagement associated to i) MMARS encumbrance ID (CT) INTF6200H22PRF760875, ii) the Section 30 of Chapter 197 of the Acts of 2024 charge to DPH to study and report on guardianship services, and iii) FY25 payments totaling at least $57,485.34. In addition to milestone interim and final written reports submitted by the consultant and accepted by DPH, the sought records include any exhibits, appendices, PowerPoint presentations, and Excel workbooks developed as a result of the consulting engagement and provided to DPH. It is specified that this request is only seeking materials related to contract deliverables such as initial, interim, and final reports. This request is not seeking discovery and build-up materials such as interview transcripts, original (nontransformed) data, or email communications between DPH and the Consultant. The Department responded on February 9, 2026, and assigned reference number BHCSQ-2026-83 to this request. Unsatisfied with the response, Mr. Lanzikos petitioned this office and this appeal, SPR26/0663, was opened as a result. 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

Helen Rush-Lloyd SPR26/0663 Page 2 March 6, 2026 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. 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 his appeal petition, Mr. Lanzikos contends: First and foremost, I reject the assertion that in this instance the DPH was performing in a policymaking function, entailing substantive deliberation which would qualify for exemption D. In this instance DPH is executing on very specific legislative instruction which establishes a requirement for the DPH to harvest facts for presentation to the General Court on a matter to which the General Court has asserted a policy interest. The General Court is the policy-making entity, not the DPH and not the Administration. DPH does not have particular expertise in the subject matter, public guardianship. The agency does not administer any public guardianship programs; nor does the Governor’s recent FY27 budget proposal signal an interest in doing so. To the extent that DPH has engaged with a consultant to develop factual reports, this engagement must be classified as a non- policy development process because the DPH is not performing in a policy- making role. Furthermore, even if willing to assign a policy-making role to the DPH, in this instance the deliberative period has been defined by the General Court and limited to “not later than July 31, 2025”. Even allowing the Administration a reasonable opportunity for a policy deliberation process that is in parallel to the General Court’s, the Governor’s FY27 budget proposal does not include a new funding initiative for DPH (or any other agency) to operate a public guardianship program. The failure to include such an initiative within its FY27 proposal should

Helen Rush-Lloyd SPR26/0663 Page 3 March 6, 2026 in itself be viewed as the Governor’s office making a final policy determination, which on the basis of timeliness should foreclose any opportunity DPH may have had to claim “exemption d” for an ongoing deliberation. Turning to the more technical considerations of extending exemption d to this scenario, I raise concern that the DPH attempt to apply the “Deliberative Process Exemption” towards the sought materials is in clear contradiction with the language and meaning of the statutory subclause. Furthermore, the DPH approach represents a most concerning attempt to broaden the executive branch’s ability to withhold materials produced by a consulting entity under commission from a state agency. If successful, the Department’s approach in this particular matter could be easily deployed across state and local government by any agency asserting that consulting deliverables are informing ongoing policy formulation and should therefore be exempt. . . . The Department’s February 9th Response In its February 9, 2026 response, the Department cited Exemption (d) of the Public Records Law to withhold the requested records. G. L. c. 4, § 7(26)(d). 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 response, the Department stated, “. . . [a]s this is an ongoing and deliberative process, prematurely disclosing such documents would taint said process and, therefore, are exempt from disclosure. The records will no longer be subject to this exemption at the completion of this process but may be subject to other exemptions under Public Records Law.”

Helen Rush-Lloyd SPR26/0663 Page 4 March 6, 2026 Based on the Department’s response, it is unclear what deliberative process the responsive records relate to, nor how such a 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”). Also, it is uncertain how disclosure of the requested records would taint any ongoing deliberative process. Further, the Department has not established how the records at issue 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 Determination 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 Department must clarify these matters. Additionally, the Department 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. “Reasonably completed factual studies or reports on which the development of such policy positions has been or may be based” are not permitted to be withheld. See G. L. c. 4, §7 (26)(d). Consequently, the Department must clarify whether the records contain any factual information that can be segregated. See Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-290 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Finally, based on the Department’s response, it is unclear what types of records it possesses that it is withholding from disclosure. To deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3)(c)(4). Here, the Department withheld responsive records without identifying each of the records. Therefore, the Department must identify the records it has in its possession that the Department withheld under Exemption (d) of the Public Records Law. Conclusion Accordingly, the Department is ordered to provide Mr. Lanzikos 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. Lanzikos may appeal the substantive nature of the Town’s response within ninety (90) days. See 950 C.M.R. 32.08(1).

Helen Rush-Lloyd SPR26/0663 Page 5 March 6, 2026 Sincerely, Manza Arthur Supervisor of Records cc: Paul Lanzikos