Christopher N. Souris, Esq. v. Department of Housing & Community Development (SPR 20160424)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords July 5, 2016 SPR16/424 Mr. Adrian Walleigh Executive Office of Housing & Community Development Office of the General Counsel 100 Cambridge Street, Suite 300 Boston, MA 02114 Dear Mr. Walleigh: I have received the petition of Christopher N. Souris, Esq. of Krakow, Souris & Landry, LLC on behalf of his client, the New England Regional Council of Carpenters (Carpenters Union) appealing the response of the Executive Office of Housing & Community Development (OCD) to an April22, 2016 request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Attorney Souris's client requested a copy ofthe 2016 pre-applications submitted by developers seeking a specific form of federal tax credit in 2016 that OCD administers for proposed low-income housing. In a May 13, 2016 response OCD withheld the responsive records without citing an exemption to the Public Records Law, providing a summary spreadsheet created in response to the request. Attorney Souris appealed. 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, § 10(c); 950 C.M.R. 32.08(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 town 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, § 1 0( c); see also District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). Under the Public Records Law and the Access Regulations (Regulations) all requests for public records must be met with a response within ten (10) days of the request. G. L. c. 66, § 10(b); 950 C.M.R. 32.05. The response may be an offer to provide records, a fee estimate for OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma.us/pre

Mr. Adrian Walleigh SPR16/424 Page 2 July 5, 2016 provision of the records, or a denial. All records custodians must comply with both the Public Records Law and the Regulations with respect to the timeliness of response. To assist in requesting and responding to requests for public records, I advise a review of our publication A Guide to the Massachusetts Public Records Law. This document is available on the Internet, free of charge, at http://www.sec.state.ma.us/pre/prepdf/guide.pdf. Attorneys on my staff are available during regular business hours to answer general questions regarding the Public Records Law. In addition, members of my staff will visit a records custodian in person to conduct training workshops on the Public Records Law upon request. Please contact my office directly at the telephone number below for further information. OCD provided a spreadsheet in lieu of responsive records, failed to provide timely response OCD' s response exceeded the ten (1 0) day required response time. OCD is advised that it must comply with the timeliness requirements of the Public Records Law and the Regulations. In its response OCD informed Attorney Souris' client that it would withhold responsive records, providing instead a spreadsheet. In denying access you explained "the pre-apps are being used as part of the currently ongoing round and are thus still part of the deliberative process, so we cannot send them." In this response you cited no exemption to the Public Record Law, nor did you cite with any specificity the application of any exemption to the records. Order I find OCD has failed to respond to a request for public records. Accordingly, OCD is hereby ordered to provide Attorney Souris with a revised response, prepared in a manner consistent with this order, the Public Records Law and its Regulati ns. A copy of any such response must be provided to this office. It is preferable to send a electronic copy of this response to this office at pre@sec.state.ma.us. .· illiams cc: Mr. Christopher N. Souris, Esq.