Tanzman, Irene v. Executive Office of Health & Human Services (SPR 20260906)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 27, 2026 SPR26/0906 Patricia M. Scanlan, Esq. Primary Records Access Officer Executive Office of Health and Human Services One Ashburton Place Boston, MA 02108 Dear Attorney Scanlan: I have received the petition of Irene Tanzman, appealing the response of the Executive Office of Health and Human Services (Office/EOHHS) to a request for public records. See G. L. c. 66 § 10A; see also 950 C.M.R. 32.08(1). On January 23, 2026, Ms. Tanzman requested “copies of the following records related to MassHealth’s Home and Community-Based Services (HCBS) quality measurement activities for FY2025 and FY2026”: [1] All HCBS quality survey instruments used during FY2025–FY2026, including: • The full survey instrument provided to UMass Chan Medical School • Any Massachusetts-specific supplemental questions • Interviewer scripts, prompts, or guidance documents • Any proxy-response, observational, or alternative-communication tools used for members unable to self-report [2] All contracts, amendments, scopes of work, or memoranda of understanding between MassHealth/EOHHS and UMass Chan Medical School pertaining to HCBS quality measurement or survey administration during FY2025–FY2026. [3] Sampling methodology and selection criteria, including: • Inclusion and exclusion criteria for survey participants • Procedures governing the treatment of members with significant communication, cognitive, or medical disabilities • Any documentation describing how MassHealth ensures ADA/504-compliant access to the survey process [4] Training materials provided to survey administrators or interviewers, 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

Patricia M. Scanlan, Esq. SPR26/0906 Page 2 March 27, 2026 including instructions for interviewing members who cannot self-report or who require communication accommodations. [5] Policies, internal guidance, or communications describing how HCBS survey data are used for quality reporting, compliance monitoring, or program evaluation during FY2025–FY2026. The Office responded on March 13, 2026. Unsatisfied with the Office’s response, Ms. Tanzman petitioned this office and this appeal, SPR26/0906, 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. 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 Ms. Tanzman states, “[a]lthough the Office provided a response, it did not include the records I requested and did not cite any exemptions or explain the absence of the remaining materials. The agency sent a large volume of files including a contract for participation in the NCI-IDD program, but none of the materials were responsive to the specific records I requested.” The Office’s March 13th Response In its March 13, 2026 response, the Office stated that “EOHHS encloses records responsive to items 2, 3a, and 5 of your request. Further, the Office stated, “[i]n response to items 1c and 4, and 3a EOHHS has no responsive records in its possession, custody, or control.” The Office cites Exemptions (g) and (u) of the Public Records Law to withhold the balance of records in their entirety for records responsive to “Items 1a, 1b, 1d, and 3b.”

Patricia M. Scanlan, Esq. SPR26/0906 Page 3 March 27, 2026 Exemption (g) Exemption (g) applies to: trade secrets or commercial or financial information voluntarily provided to an agency for use in developing governmental policy and upon a promise of confidentiality; but this subclause shall not apply to information submitted as required by law or as a condition of receiving a governmental contract or other benefit. G. L. c. 4, § 7(26)(g). For this exemption to apply in order to withhold a record, a custodian must meet all of the following six (6) criteria contained in the exemption: (1) trade secrets or commercial or financial information; (2) voluntarily provided to a government entity; (3) for use in developing government policy; (4) upon an assurance of confidentiality; (5) information not submitted by law; and (6) information not submitted as a condition of receiving a governmental benefit. In its response, the Office states, “[i]n response to 1b, EOHHS withholds Massachusetts- specific supplemental questions submitted by a Harvard University researcher. The withheld records constitute trade secrets or commercial information voluntarily submitted to EOHHS for the agency’s use in developing future policy and not as a condition of receiving a contract or other benefit. Accordingly, the records are exempt pursuant to G.L. c. 4, § 7, cl. 26(g).” Upon review, the Office merely cites the criteria of Exemption (g) without any further explanation as to how the requested records are exempt from disclosure. Also, the Office did not clarify whether the information is not submitted by law. Thus, I find that the Office did not meet its burden to withhold the records under Exemption (g) and has not demonstrated that all six criteria have been met. Exemption (u) Exemption (u) applies to: trade secrets or other proprietary information of the University of Massachusetts, including trade secrets or proprietary information provided to the University by research sponsors or private concerns. G. L. c. 4, § 7(26)(u).

Patricia M. Scanlan, Esq. SPR26/0906 Page 4 March 27, 2026 In its response, the Office states, “[i]n response to items 1a, 1b, 1d, and 3b, EOHHS withholds the NCI-IDD Survey Instrument and Massachusetts-specific supplemental questions. The records are proprietary material provided to UMMS for research purposes. The records are withheld pursuant to G.L. c. 4, § 7, cl. 26(u), which exempts from disclosure trade secrets or other proprietary information of the University of Massachusetts, including trade secrets or proprietary information provided to the University by research sponsors or private concerns.” Upon review of the Office’ response, I find that the Office has not met its burden of specificity to demonstrate that the responsive records can be withheld under Exemption (u). Particularly, it remains uncertain how the records are propriety material provided to UMMS by research sponsors or private concerns as contemplated by Exemption (u). The Office must clarify this matter. Further, it is uncertain how the records can be withheld in their entirety. The Office must explain whether the records can be redacted so that segregable portions can be provided. See 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). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). The Office must clarify this matter. Additional Records Based on Ms. Tanzman’s claims, in conjunction with the Office’s response, it is unclear if the Office possesses any additional records responsive to her request. The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). However, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). Consequently, the Office must clarify whether any additional responsive records exist. Conclusion Accordingly, the Office is ordered to provide Ms. Tanzman with a response to the request, 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 the response to this office at pre@sec.state.ma.us. Ms. Tanzman may appeal the substantive nature of the Office’s response within ninety (90) days. See 950 C.M.R. 32.08(1).

Patricia M. Scanlan, Esq. SPR26/0906 Page 5 March 27, 2026 Sincerely, Manza Arthur Supervisor of Records cc: Irene Tanzman