Tanzman, Irene v. Executive Office of Health & Human Services (SPR 20261391)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 27, 2026 SPR26/1391 Patricia M. Smith, Esq. Records Access Officer Executive Office of Health and Human Services 1 Ashburton Place, Room 1109 Boston, MA 02108 Dear Attorney Smith: 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 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. Smith, Esq. SPR26/1391 Page 2 April 27, 2026 [4] Training materials provided to survey administrators or interviewers, 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. Previous Appeal This request was the subject of a previous appeal. See SPR26/0906 Determination of the Supervisor of Records (March 27, 2026). In my March 27th determination, I found that the Office had not met its burden to withhold outstanding responsive records identified as the “NCI-IDD Survey Instrument and the Massachusetts-specific supplemental questions” under Exemptions (g) and (u) of the Public Records Law. I also ordered the Office to clarify whether it possesses any additional responsive records. The Office responded on April 14, 2026. Unsatisfied with the Office’s response, Ms. Tanzman petitioned this office and this appeal, SPR26/1391, 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. The Office’s April 14th Response In its April 14, 2026 response, the Office expanded upon its Exemptions (g) and (u) claims, and provided the following background information:

Patricia M. Smith, Esq. SPR26/1391 Page 3 April 27, 2026 The National Association of State Directors of Developmental Disabilities Services (NASDDDS) is the managing entity for the administration of the National Core Indicators – Intellectual and Developmental Disabilities (NCI-IDD) Program. The NCI-IDD Program is a standardized suite of surveys, including the NCI-IDD In Person Survey and the three Family surveys. EOHHS has partnered with NASDDS to engage UMass Chan Medical School (UMMS) ForHealth Consulting’s Office of Survey Research (OSR) administer the National Core Indicators - Intellectual and Developmental Disabilities (NCI-IDD) survey on EOHHS’ behalf. The NCI-IDD Survey Instrument is copyrighted material owned by NASDDDS and the Human Services Research Institute (HSRI). The Office also noted that the “NCI-IDD Survey Instrument is further exempt from disclosure” pursuant to 17 U.S.C. §§ 106 and 501 as the statutes operate through Exemption (a) of the Public Records Law. Further, the Office confirmed that it has “no additional responsive records in its possession, custody, or control.” Current Appeal In her appeal petition, Ms. Tanzman argued against the applicability of Exemptions (a), (g), and (u). Ms. Tanzman also took issue with the Office’s “failure to consider segregability” and “incomplete response regarding additional records.” No Duty to Create Records Please be advised, under the Public Records Law a custodian is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d). In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See 32 Op. Att’y Gen. 157, 165 (May 18, 1977). Further, 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). Given that the Office has confirmed that it possesses no additional responsive records other than those that have already been provided or identified, and this office has no authority to compel the Office to create records, I will consider this portion of Ms. Tanzman’s appeal resolved. 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 G. L. c. 4, §7 (26)(a).

Patricia M. Smith, Esq. SPR26/1391 Page 4 April 27, 2026 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, 54 (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. Under Exemption (a), the Office stated: The NCI-IDD Survey Instrument is further exempt from disclosure pursuant to G.L. c. 4, § 7, cl. 26(a) (“Exemption (a)”)… Federal copyright law, codified at 17 U.S.C. §§ 106 and 501, grants the copyright owner the exclusive right to reproduce and distribute the copyrighted work. The NCI-IDD Survey Instrument is copyrighted material owned by NASDDDS and HSRI. It was provided to EOHHS under a contractual license limited to program administration and data collection. The terms of that license do not extend to public disclosure of the instrument to third parties. Accordingly, the NCI-IDD Survey Instrument is exempt from disclosure pursuant to Exemption (a). 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 subparagraph 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,

Patricia M. Smith, Esq. SPR26/1391 Page 5 April 27, 2026 (2) Voluntarily provided to a government entity, (3) For use in developing government policy, (4) Upon an assurance of confidentiality, (5) Information not submitted as required by law, and (6) Information not submitted as a condition of receiving a governmental contract or benefit. Under Exemption (g), the Officer stated: …[P]ursuant to Exemption (g), EOHHS withholds the Massachusetts-specific supplemental questions submitted by a Harvard University researcher… The withheld record contains proprietary research criteria developed by a Harvard University researcher to aid EOHHS’ administration of the NCI-IDD survey. Neither EOHHS nor UMMS have a contractual relationship with the Harvard researcher regarding the NCI-IDD survey. The record was developed and provided to EOHHS and UMMS voluntarily, confidentially, and not “submitted by law.” The record has not been disclosed publicly. The record constitutes trade secrets and is considered proprietary because it is a curated research methodology with specific phrasing and sequencing to produce reliable, unbiased, and actionable data. It is not a genetic list of questions. Maintaining the confidentiality of the withheld record serves the public interest as it allows for the administration of the NCI-IDD survey to generate data that will be used in developing government policy around services provided to those with intellectual and developmental disabilities. 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). Under Exemption (u), the Office stated: …[P]ursuant to Exemption (u), EOHHS withholds the NCIIDD Survey Instrument and the Massachusetts-specific supplemental questions. The withheld records were provided to UMMS by “research sponsors or private concerns” for use in the administration of the NCI-IDD survey. The NCI-IDD Survey Instrument was provided to UMMS by National Association of State Directors of Developmental Disabilities Services (NASDDDS). NASDDDS is a research sponsor for the NCI-IDD survey in that it developed the proprietary survey

Patricia M. Smith, Esq. SPR26/1391 Page 6 April 27, 2026 instrument, provides general oversight for the program, and manages the program budget. The Massachusetts-specific supplemental questions were provided to UMMS by a Harvard researcher. The Harvard researcher is a research sponsor for the NCI- IDD survey in that they initiated aspects of the research program based on the supplemental questions developed for the NCI-IDD survey. The Massachusetts- specific supplemental questions, as described above, and the NCI-IDD Survey Instrument are considered proprietary trade secrets. The records are more than a simple list of questions. The documents reflect carefully designed research methods, which employ deliberate wording and structure to generate dependable, objective, and meaningful data. Based on the Office’s response, where the Office has demonstrated that the outstanding NCI-IDD Survey Instrument and the Massachusetts-specific supplemental questions constitute proprietary information provided to the University of Massachusetts by its research sponsors, I find that the Office may properly withhold these records under Exemption (u) of the Public Records Law. Where the Office has met its burden to withhold the remaining records under Exemption (u), I decline to opine on the applicability of Exemptions (a) and (g) to the responsive records. Conclusion Accordingly, I will now consider this administrative appeal closed. If Ms. Tanzman is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth of Massachusetts. See G. L. c. 66, § 10A(c) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Irene Tanzman