John Katella v. Worcester, City of - Law Department (SPR 20210996)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 23, 2021 SPR21/0996 Michael Vigneux Records Access Officer City of Worcester 455 Main Street, Room 301 Worcester, MA 01608 Dear Mr. Vigneux: I have received the petition of John Katella appealing the response of the City of Worcester (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 16, 2021, Mr. Katella requested the following: 1. How much in total property taxes did the properties designated as “affordable”/ subsidized, according to the DHCD's December 2020 SHI inventory list, pay to the city of Worcester in 2020? Please list total number of units and total property taxes collected. . . . 2. What percentage of land, as stated by MGL Chapter 40B Section 20 Paragraph 4, is set aside for “affordable”/ subsidized housing in the city of Worcester. As stated in the law, “on sites comprising one and one half per cent or more of the total land area zoned for residential, commercial or industrial use.” . . . 3. Please list all non-taxable properties/ parcels in Worcester and their total acreage, and the total acreage of all Worcester parcels. The City responded on March 30, 2021, providing a number of responsive records, and explaining that “the City does not capture affordability restrictions in [its] assessing systems.” The City also provided a link “[t]o look up individual projects/addresses to determine tax liability.” Unsatisfied with the City’s response, Mr. Katella appealed, and this case 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

Michael Vigneux SPR21/0996 Page 2 April 23, 2021 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). 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, § 10(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 his appeal petition Mr. Katella contends “[t]his is information the city should already have readily available as it pertains to yearly planning and budgeting.” He further explains, with respect to item 1, “[t]he affordable question was not answered. I received a list of properties but not the amount the city collected in property taxes in 2020.” With respect to item 2, he states “[t]his question was not answered.” And with respect to item 3, he states that he “[o]nly received list of properties and what they would have paid if they had been taxable, but questions on total acreage were not answered.” In an email to this office on April 23, 2021, the City stated that it “has provided all existing documents responsive to Mr. Katella’s request.” The City went on to explain that “[f]urther responses would require the creation of new records. Mr. Katella is requesting that the City create new records and respond to questions.” No Duty to Create Records The City is not required to create a record in response to a public records request. 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). Additionally, under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Atty Gen. 157, 165 (May 18, 1977). Conclusion Accordingly, I will consider this administrative appeal closed. If Mr. Katella is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 10(b).

Michael Vigneux SPR21/0996 Page 3 April 23, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: John Katella