Michele Perry v. Department of Housing & Community Development (SPR 20191705)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor(![ Records September 5, 2019 SPR19/1705 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 Michele Perry appealing the response of the Department of Housing & Community Development (Department) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Ms. Perry requested all emails or written conespondence regarding an identified 40B development. 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 fotm 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. Previous Appeal This request was the subject of a previous appeal. See SPR19/1587 Determination of the Supervisor of Records (August 19, 2019). Subsequent to the intervention by a staff member of the Public Records Division, I learned that a response was provided dated August 12, 2019. Whereas this matter was opened based upon the Department's failure to provide a written response, I closed the appeal. 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

Attorney Walleigh SPR19/l 705 Page2 September 5, 2019 Unsatisfied with the Department's August 121 h response, Ms. Perry petitioned this office and as a result SPRl 9/1705 was opened. Current Appeal In a letter to this office dated August 20, 2019, Ms. PelTy states, "[w]hile I appreciate the time and energy that went into the detem1ination relating to my PRR appeal, you will see below, that there was an oversight on DHCS 's part regarding documents I had requested. I did indeed receive documents on the 12th, however, those that I did receive were incomplete in that (As stated below) all documents were not included, only a selected few. They were dated June 07, 2019 - July 23rd. I requested correspondence from January 1, 2019- completion of the task (Apparently, July 23rd)." Ms. Peny adds, "[g]iven this situation, I am asking again for all email co1Tespondence as I did in the original PRR which was filed both on the online request and an email request to Mr. DeMartino." Subsequent to the intervention by a staff member of the Public Records Division, I learned that the Department provided Ms. Peny a supplemental response dated August 22, 2019; In the August 22nd response the Department states, "[a]fter a diligent search and further discussion with possible responsive document holders, DHCD has determined that the only documents in its possession which are responsive to the request have already been provided. The responsive documents are also attached to this email. DHCD is not withholding any documents nor relying on any exemptions to the public records law." No Duty to Create Records Please be advised, under the Public Records Law the Department 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, § 10(a )(ii). Conclusion Whereas the Department does not possess records responsive to Ms. Pe1Ty's request and has no duty to create records responsive to the request, I will now consider this administrative· appeal closed. Sincerely, ~ r r ~ Supervisor of Records cc: Michele Perry