Christopher N. Souris, Esq. v. Department of Housing & Community Development (SPR 20170553)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords May 5, 2017 SPR17/553 Adrian Walleigh, Esq. Department of Housing & Community Development Office of the General Counsel 100 Cambridge Street, Suite 300 Boston, MA 02114 Dear Attorney Walleigh: I have received the petition of Christopher N. Souris, Esq. of Krakow, Souris & Landry, LLC on behalf of his client, New England Regional Council of Carpenters (Council) appealing the response of the Executive Office of Housing & Community Development (DHCD) to a request for public records. G. L. c. 66 § lOA; see also 950 C.M.R. 32.08(1). Specifically, the Council's Representative, Richard Kronish requested a copy of: All applications (pre-applications/Form 1 and the approved applications) for the Winter 2017 Affordable Housing Competition for rental projects received by DHCD before the submission deadline of December 15, 2016, including all attachments and supporting documentation provided by the proposed developer in conjunction with each application. On March 22, 2017, DHCD provided the Council with a spreadsheet list containing the project sponsor, the name of the project and location of the project. The DHCD did not provide the requested applications and attachments, nor did DHCD claim an exemption in the Public Records Law in its response to deny the requested records. On March 27, 2017, Mr. Kronish emailed you, stating "I am seeking more than the list you initially sent to me, I am requesting the pre-applications, seemingly called Form 1, which typically number six (6) pages." Mr. Kronish also sent you two examples which you sent to him in accordance with his 2015 request. The DHCD did not respond again until April 24, 2017, when you sent Mr. Kronish a letter claiming that Exemption (d ) applies to withhold all the responsive records. Upon receipt of this letter, Attorney Souris petitioned this office and an appeal was opened. The DHCD did not meet its statutory and regulatory burden of providing a proper response within ten (10) business days of receiving the March 9, 2017 public records request. The DHCD had an obligation when 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

Adrian Walleigh, Esq. SPRl 7/553 Page 2 May 5, 2017 denying the request to claim an exemption in the Public Records Law to withhold the responsive records. 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, § lOA(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 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, § 1O (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, § 1 O(b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. To assist in requesting and responding to requests for public records please refer to 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. Public Records Division attorneys are available during regular business hours to answer general questions regarding the Public Records Law. In addition, Public Records Division staff will visit a records custodian in person to conduct training workshops on the Public Records Law upon request. Exemption (d ) The DHCD contends that the applications and attachments are exempt in their entirety pursuant to Exemption (d) of the Public Records Law. Exemption (d) applies to: inter-agency or intra-agency memoranda or letters relating to policy positions. being developed by the agency; but this sub-clause 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. Babets v. Secretary of the Executive Office of Human Services, 403 Mass. 230,237 n.8 (1988).

Adrian Walleigh, Esq. SPRl 7/553 Page 3 May 5, 2017 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 Environmental Protection Agency v. Mink, 410 U.S. 73, 89 (1973) (Purely factual matters used in the development of government policy are always subject to disclosure.) The deadlines to submit the pre-applications and final application deadlines passed in December 2016 and March 2017. Your April 24th letter states that "DHCD's consistent stance of this issue is that all pre-applications, both approved and unapproved, are being utilized in the deliberative process. The approved pre-applications are used for reference and comparison in the on-going deliberative process, and dissemination of these records could seriously taint the deliberative process." Therefore, the DHCD believes that it is justified in withholding all the applications for the tax credit under Exemption ( d) of the Public Records Law. It is unclear how the deliberative process remains ongoing and why the factual information contained in these documents cannot be released. I find that DHCD has not met its burden of proving with specificity why the applications must be withheld in their entirety pursuant to Exemption ( d). Please be advised that the exemptions are narrowly construed and are not blanket in nature. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. See G. L. c. 66, § lO(a); see also Reinstein v. Police Comm'r of Boston, 3 78 Mass. 281, 289-90 (1979). Order Accordingly, the DHCD is ordered to provide the responsive records within ten business days, in a manner consistent with this order, the Public Records Law and its Regulations. If the DHCH maintains that any portion of the responsive records are exempt from disclosure under Exemption ( d), it must, within ten business days, provide Attorney Souris with a written explanation, with specificity, how the exemption applies to each portion of the withheld record. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma. us. Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Christopher N. Souris, Esq.