Christopher N. Souris, Esq. v. Department of Housing & Community Development (SPR 20170714)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords June 8, 2017 SPR17/714 Adrian Walleigh, Esq. Legal Counsel Department of Housing & Community Development 100 Cambridge Street, Suite 300 Boston, MA 02114 Dear Attorney Walleigh: I have received the petition of Christopher Souris, Esq. of Krakow, Souris & Landry, LLC on behalf of his client, Richard Kronish of the New England Regional Council of Carpenters appealing the May 22, 2017 response of the Department 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, Mr. Kronish requested copies of all applications (commonly known as "pre-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. Prior appeal and determination The responsive pre-applications were the subject of a prior appeal and determination. See SPRl 7/533 Determination of the Supervisor of Records (May 5, 2017). In my determination, I found that the DHCD did not meet its burden of proof in withholding the pre-applications pursuant to Exemption ( d), and I ordered the DHCD to provide Attorney Souris with copies of all the responsive pre-applications. By letter dated May 22, 2017, the DHCD' s Chief Counsel Roberta Rubin states, "the DHCD is prepared to provide copies of the pre-applications for those projects that did not receive approval from DHCD in the pre-application process, although we will need some additional time for photocopying." However, the DHCD still maintains that the remaining pre applications cannot be released as they fall under the protection of the federal Internal Revenue Code provisions as they operate through Exemption (a) as well as Exemptions (d) and (h) of the Public Records Law. Attorney Souris appealed and the current appeal was opened. 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 7/714 Page2 June 8, 2017 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, § lO(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. Exemption (d) The DHCD continues to maintain that Exemption ( d) will-allow the DHCD to withhold the pre-applications until an award of the "low income housing tax credits" are awarded to the applicants. 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. 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. 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).

Adrian Walleigh, Esq. SPRl 7/714 Page 3 June 8, 2017 The DHCD contends that because the pre-applications are being actively used in the DHCD process with respect to the full applications, the pre-applications should not be released until the DHCD makes the awards from the evaluation of the full applications. As Attorney Rubin explained in her May 22nd letter and prior communications regarding this public records request, "these applications are commonly referred to as 'pre-applications,' as they constitute a preliminary stage in the Affordable Housing Competition, helping DHCD to identify projects that are at an early stage and not ready to proceed to competitive review." The DHCD has not demonstrated how the pre-applications are "inter-agency or intra agency memoranda or letters relating to policy positions being developed by the agency" protected under Exemption (f). See G. L. c. 4, § 7 (26)(d). Nor has DHCD provided sufficient evidence to support its position that disclosure of the pre-applications will jeopardize its deliberative process of its present evaluation at the "full" application stage in its process to award tax credits. It is also unclear how there are no purely factual matters, or "reasonably completed factual studies or reports on which the development of such policy positions has been or may be based" within the records that must be disclosed. 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, § lO(a). Consequently, the DHCD has not met its burden in establishing the pre-applications may be withheld under Exemption ( d) of the Public Records Law. Exemption (h) In the DHCD's May 22nd response, the DHCD seeks to withhold pre-applications under Exemption (h). proposals and bids to enter into any contract or agreement until the time for the opening of bids in the case of proposals or bids to be opened publicly, and until the time for the receipt of bids or proposals has expired in all other cases; and inter-agency or intra-agency communications made in connection with an evaluation process for reviewing bids or proposals, prior to a decision to enter into negotiations with or to award a contract to, a particular person G. L. C. 4, § 7 (26)(h). Exemption (h) pertains to proposals and bids submitted to a government entity for the purchase of goods and/or services. It is unclear how the requested pre-applications are proposals and bids to enter into a contract or agreement for goods and/or services as contemplated by Exemption (h). Therefore, I find the DHCD has not met its burden in establishing that Exemption (h) allows for the withholding of the requested pre-applications.

Adrian W alleigh, Esq. SPRl 7/714 Page 4 June 8, 2017 Exemption (a) - Federal Internal Revenue Code Finally, the DHCD claims that the federal Internal Revenue Service Code (Code) provisions govern allocation of low income housing tax credits and contain an implied obligation to protect the deliberative process so that the credits are allocated strictly in accordance with the Commonwealth's QAP. Therefore, the DHCH posits, Exemption (a) applies to withhold the pre applications. 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). 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 Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). A review of the Code provisions cited by the DHCD fails to show any language that will restrict the DHCD from disclosing the responsive pre-applications. These provisions appear to be guidelines and requirements for agencies to follow in instituting and acting on the housing credit agency's QAP in receiving the federal government funding to award the low income housing credits. For example, a Code section cited by the DHCD that pertains to Low Income Housing Credit Programs directs housing credit agencies to consider: (i) The sources and uses of funds and total financing planned for the project, (ii) Any proceeds or receipts expected to be generated by reason of tax benefits, (iii) The percentage of the housing credit dollar amount used for project costs other than the cost of intermediaries, and (iv) The reasonableness of the developmental and operational costs of the project. 26 U.S.C. § 42(m)(2)(2015 ed.). It is not apparent how the IRS Code sections either specifically or by necessary implication will restrict public disclosure of the pre-applications. Therefore, I find the DHCD has not met its burden in establishing how Exemption (a) will allow the DHCD to withhold the pre applications. I find that DHCD has not met its burden to withhold the pre-applications, in their entirety, under Exemptions (a), (d) or (h) of the Public Records Law. See Reinstein 378 Mass. at 289-90 (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, § 1O (a).

Adrian Walleigh, Esq. SPRl 7/714 Page 5 June 8, 2017 Order Accordingly, the DHCD is ordered to provide Attorney Souris with a response in a manner consistent with this order, the Public Records Law and its Regulations within ten business days. A copy of the 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 Souris, Esq.