Daniel Schneider v. Department of Housing & Community Development (SPR 20192347)

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

Rebecca S, Murray Supervisor of Records

December 6, 2019 SPR19/2347 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 made four requests to the Department: .

1, The total number of families DHCD deemed eligible for Emergency Assistance (“EA”) Shelter in each of the following years: 2011, 2012, 2013, 2014, 2015, 2016, 2017, 2018;

2. The total number of families DHCD deemed eligible for EA Shelter for each of the years listed in Request 1 (2011-2018) with a child or children under age six in their household;

3. The total number of families residing in non-EA domestic violence shelters and — residential use treatment programs DHCD deemed eligible to access HomeBASE for each of the years listed in Request 1 (2011-2018);

4, The total number of families residing in non-EA domestic violence shelters and residential use treatment programs DHCD deemed eligible to access HomeBASE for each of the years listed in Request 1 (2011-2018) with a child or children under age six in their household.

Previous Appeals

The requested records were the subject of previous appeals. See SPR 19/1491 Determination of the Supervisor of Records (July 25, 2019); SPR 19/2066 Determination of the Supervisor of Records (October 24, 2019). I closed SPR 19/2066 in light of the Department’s — supplemental response to Attorney Schneider dated October 23, 2019. Unsatisfied with this response, Attorney Schneider petitioned this office and this appeal, SPR 19/2347, was opened as a result.

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. ~ SPR19/2347 Page 2 December 6, 2019

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).

Current Appeal

In his November 20" appeal petition, Attorney Schneider argues that “complying with [Community Legal Aid]’s request would not require the creation of a new record.” Attorney Schneider further states that “[the Department] has failed to produce the public records requested and has failed to show that such records ‘may be withheld in accordance with state or federal law.’”

In his October 9" petition, Attorney Schneider states that the Department “indicated in its emails that it possesses the requested information when it stated that it would need to run ‘custom queries’ to comply with CLA’s public records request..,.CLA understands this to mean that, to comply with CLA’s public records request, [the Department] would need to search for and extract the requested information from its existing databases.”

The Department's October 23" Response

The Department provided a supplemental response on October 23, 2019, providing additional information regarding the steps required to respond to the requests. 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 involves “creation of [a] query, testing, and performing quality control work” and would require “multiple queries” and “integration of multiple sets of results.”

The Department states that there are additional obstacles to producing data responsive to Request 2, indicating that “[w]hile shelter enrollment information for all families in EA shelter exists in aggregate form, that aggregate data only exists as totals by month/quarter/year and region/eligibility office, without a breakdown by household composition.” Therefore, to produce responsive data, the Department writes, it “would then need to carry out extensive data manipulation to produce enrollment data for those households...staff will need to carefully manipulate the data to distinguish between enrollments associated with a new episode of homeless[ness] versus a continuing episode of homelessness” (emphasis in original).

With respect to Request 3, the Department states that it only maintains responsive data beginning in 2017, and has produced this information to the requestor. Regarding Request 4, the

Adrian Walleigh, Esq. SPR19/2347 Page 3 December 6, 2019

Department states that “it should be possible to query the system to determine the number of households identified in [Request 3] who have a child/children under age six.”

No Duty to Create Records; Extraction of Data

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).

Based on the Department’s responses, I find it has not established that the requested data did not exist, and was not in the possession, custody, or control of the Department at the time of the request. See G. L. c. 66, § 10(a)(ii). Particularly, the Department has not shown that providing a response to the requests constitutes creation of a new record. See 950 C.M.R. 32.07(1)(f).

Specifically, it is unclear what the Department means when it states it will need to perform “data manipulation” and “data quality work” in order to produce responsive data. It is additionally unclear’ what the Department means by “querying” a database, and how this process does not constitute the “extraction of existing data.” Further, the Department must address whether it can produce the raw data that it currently maintains in the databases described in its. October 23" response. The Department must clarify these matters.

Conclusion

Accordingly, the Department is ordered to provide a response to Attorney Schneider in a manner consistent with this order, the Public Records Law, and its Regulations within ten (10) business days. A copy of such 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 ce: Daniel Schneider, Esq.