Eileen W. Mooney v. Great Barrington, Town of - Housing Authority (SPR 20190904)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 7, 2019 SPR19/904 Karen Smith Great Barrington Housing Authority 2 Bernard Gibbons Drive Great Barrington, MA 01230 Dear Karen Smith: I have received the petition of Eileen W. Mooney appealing the response of the Great Barrington Housing Authority (Authority) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Ms. Mooney requested, "a list of all employees and independent contractors hired on more than a seasonal basis by the Great Barrington Housing Authority with, for each, job title, brief description of duties, pay, benefits and number of hours worked in a typical week." Previous Appeal This appeal was the subject of a previous case. See SPRl 9/813 (April 24, 2019). I closed SPR19/813 by ordering the Authority to provide a supplemental response to the requestor, in a manner consistent with the order, the Public Records Law and its Regulations without delay. Subsequent to the intervention by a staff member of the Public Records Division, I was informed that the Authority provided Ms. Mooney a response dated May 3, 2019. In the May 3rd response, Attorney Colin R. Boyle, of Morgan, Brown & Joy LLP, expressed, "GBHA does not have and did not have a responsive record for your request. It has not destroyed responsive records. The office clerk position you have inquired about was a temporary position, which did not have a job description at any time and GBHA has not yet created a job description for future posting." Unsatisfied with this response, Ms. Mooney petitioned this office and as a result SPR19/904 was opened. Th.e 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 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

Karen Smith SPR19/904 Page 2 May 7, 2019 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. Current Appeal In a letter to this office dated May 4, 2019, Ms. Mooney writes, "Mr. Boyle might not have all the relevant information. The current clerk was hired in June 2018. According to the authority's chairman, she will leave in May 2019. A job lasting eleven months does not seem to be a 'temporary' position, and even temporary positions need job descriptions, especially when public funds help pay the salary and a publicly elected board oversees job performance.)" Ms. Mooney further states, "[t]he 'future posting' has been advertised and applications are due by May 10. The Shopper's Guide ad, which is attached, refers to the need for 'financial record keeping and strong computer skills.' What are those financial records? What would the person do on a computer? What, in other words, is the job description? One must exist if certain abilities are being sought." No Duty to Create Records Please be advised, under the Public Records Law the Authority is not required to create a record in response to a public records request. See G. L. c. 66, §6A(d ). 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 ofrecords at the time of the request. See G. L. c. 66, § lO(a)(ii). Conclusion Whereas the Authority does not possess records responsive to Ms. Mooney's request and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. Sincerely, ~~ Supervisor of Records cc: Eileen Mooney Colin R. Boyle, Esq.