Colman Herman v. Massachusetts Housing Finance Agency (SPR 20180799)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords June 14, 2018 SPRlS/799 Amy Blouin, Esq. Massachusetts Housing Finance Agency One Beacon Street Boston, MA 02108 Dear Attorney Blouin: I have received the petition of Colman Herman appealing the response of the Massachusetts Housing Finance Agency (Agency) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on June 5, 2018, Mr. Herman requested" ... a copy of the 'transition memo' prepared by [an identified individual]." The Agency provided a response on May 19, 2018, which included responsive records in redacted form. The Agency claims the redactions were made pursuant to Exemption (d) of the Public Records Law. G. L. c. 4, § 7(26)(d). Unsatisfied with the Agency's response, Mr. Herman petitioned this office and this appeal, SPR18/799, was opened as a result. While this appeal was pending, the Agency provided a supplemental response on June 7, 2018. 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. 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

Amy Blouin, Esq. SPR18/799 Page 2 June 14, 2018 If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1O (b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Agency's May 19th and June fltresponses In its May 19, 2018 response, the Agency indicates that the redacted portions of the record are exempt from disclosure under Exemption ( d) "as inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency." In its June 7, 2018 response, the Agency indicates that the "Transition memo is an intra agency memoranda related to recommendations on policy positions being developed by" the Agency. As such, it is exempt from disclosure under Exemption ( d). The Agency explains that the Transition memo, which was written by the Agency's previous Deputy Director, is to provide the Agency's new Executive Director with" ... policy insights regarding [the Agency's] programs and operations, as well as to make legal and policy recommendations to" the Executive Director. The Agency asserts that because the new Executive Director's tenure" ... is still in the early stages, decisions regarding legal and policy determinations are still on-going at this time." The Agency contends that should it be required to "disclose the entire contents of the Transition memo during a time in which [the Agency] and its executive leadership continue to deliberate and make decisions regarding .important policy and legal issues, [it] would taint the deliberative process." The Agency further provides a chart which addresses each redacted section and provides a nexus between the policy at issue and the reason each redacted section is relevant to the deliberative process. In the chart, the Agency claims that the on-going deliberative process relates to recommendations on policy matters related to the following: (1) strategic planning and strategic direction of its '"Rental Reinvention;'" (2) information technology strategies and related staffing policies; (3) proposed new procedures and policies related to internal risk management and coordination with federal programs; (4) changes to policies related to affordability monitoring practices; (5) legal and business strategies, as well as internal policies, related to Agency's subsidy administration contracts; (6) decisions related to strategic planning for the Agency's community service programs and department; (7) future policy decisions related to approval processes for the Agency's affordable rental loans; (8) the Agency's homeownership programs; and (9) management and improvement of the Agency's internal policies and procedures, including its training policies, goals, and future policy activity related to other specified matters. The Agency asserts that the deliberative processes regarding these matters remain on-going. The Agency in its responses has indicated that the Transition memo is an intra-agency memorandum passed on from its previous Deputy Director to the Agency's new Executive Director. The Agency explains that the Transition memo provides its new Executive Director with policy insights regarding the Agency's programs and operations, as well as makes legal and policy recommendations to the new Executive Director. Further, the Agency contends that

Amy Blouin, Esq. SPR18/799 Page 3 June 14, 2018 because the new Executive Director's tenure is still in the early stages and decisions regarding the legal and policy determinations remain on-going, disclosing the entire contents of the Transition Memo would taint the deliberative process. In light of this information, I find that the Agency has met its burden to withhold portions of the responsive records under Exemption ( d) of the Public Records Law. It should also be noted that a change in the status of the on-going deliberation could impact the applicability of Exemption (d ) to the withheld records. Conclusion Whereas I find that the Agency may permissibly withhold the portions of the responsive records under Exemption ( d) of the Public Records Law at this time, I will consider this administrative appeal closed. Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Colman Herman