Daniel Schneider v. Department of Housing & Community Development (SPR 20192066)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division

Rebecca S, Murray ~ Supervisor of Records

October 24, 2019 . SPR19/2066 Adrian Walleigh, Esq.

Counsel, Records Access Officer

Dept. Housing and Community Development

100 Cambridge Street, Suite 300

Boston, MA 02114

Dear Attorney Walleigh:

I have received the petition of Attorney Daniel Schneider appealing the response of the Department Housing and Community Development (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Attorney Schneider requested information regarding the number of families eligible for certain shelter and emergency assistance programs administered by the Department.

Previous Appeal

The requested records were the subject of a previous appeal. See SPR 19/1491 Determination of the Supervisor of Records (July 25, 2019). In my July 25" determination, I ordered the Department to provide a supplemental response to Attorney Schneider. The Department provided this response on July 31, 2019, producing records responsive to one of Attorney Schneider’s requests, and providing further explanation for its inability to provide additional records. Unsatisfied with this response, Attorney Schneider petitioned this office and this appeal, SPR 19/2066, was opened as a result.

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, § 10A(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).

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. SPR19/2066 Page 2 October 24, 2019

Fee estimate — Agencies

An agency may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.05) per page may be assessed for a black and white single or double-sided photocopy of a public record. G. L. c. 66, § 10(d)(i).

Agencies may not assess a fee for the first four (4) hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested. G. L. c. 66, § 10(d)(ii). Where appropriate, agencies may include as part of the fee an hourly rate equal to or less than the hourly rate attributed to the lowest paid employee who has the necessary skill required to search for, compile, segregate, redact or reproduce a record requested, but the fee shall not be more than $25 per hour. Id. A fee shall not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv). See G. L. c. 66, § 10(d)(ii); 950 CMR 32.06(4).

If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). In order to assess a fee for the production of records, a custodian must have responded to the requester within ten business days. 950 C.M.R. 32.06(2)(c). Once fees are paid, a records custodian must provide the responsive records.

Current Appeal

In his appeal petition, Attorney Schneider argues that “responding to [Community Legal Aid]’s public records request would not require [the Department] to create a new record.”

No Duty to Create Records

Please be advised, under the Public Records Law a custodian is not required to create a record in response to a public records request. See G. L. c. 66, §6A(d). In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See 32 Op. Atty Gen. 157, 165 (May 18, 1977). 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 of records at the time of the request. See G. L. c. 66, § 10(a)(ii).

However, under the Public Records Law, “furnishing a segregable portion of a public record shall not be deemed to be creation of a new record. This applies to a responsive record in the form of an extract of existing data, as such data exists at the time of the request and is segregable from nonresponsive and exempt data.” 950 C.M.R. 32.07(1)(f).

Adrian Walleigh, Esq. SPR19/2066 Page 3 ; October 24, 2019

Use of Superior Knowledge; Modification of Request

Under the Public Records Law, records custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). Additionally, a records access officer may “suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency or municipality to produce records

sought more efficiently and affordably.” G.L, c. 66, §10(b)(vii). To this end, I understand that the Department has offered to produce enrollment data, which it maintains for legislative reports, and suggests that this will be nearly the same as the requested data. This office encourages the parties to communicate further to develop a plan to provide Attorney Schneider with the information he seeks.

The Department’s October 23" Response

Subsequent to the opening of this appeal, the Department provided a supplemental response on October 23, 2019. In this response, the Department states that it “does not maintain EA eligibility data in the manner requested” by Attorney Schneider. The Department then details the process by which it would attempt to retrieve the requested data from its computer systems, which includes “the querying of two separate databases, combining the data and doing data quality work on the results.” The Department has additionally raised concerns regarding the accuracy, and therefore utility, of the data it could produce from this process.

Conclusion

In light of the Department’s supplemental response which addresses various issues raised in Attorney Schneider’s appeal, I will consider this administrative appeal closed. If issues remain unresolved, Attorney Schneider my appeal the substantive nature of the Department’s most recent response within ninety (90) days. See 950 C.M.R. 32.08(1).

Sincerely,

Rilrvca

Rebecca S. Murray Supervisor of Records ce: Daniel Schneider, Esq.