Michael Christian v. Boston Housing Authority (SPR 20232284)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 10, 2023 SPR23/2284 Sophia Elia Records Access Officer Boston Housing Authority 52 Chauncy Street Boston, MA 02111 Dear Ms. Elia: I have received the petition of Michael Christian appealing the response of the Boston Housing Authority (Authority) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 23, 2023, Mr. Christian requested: . . . all correspondence between Boston Housing Authority and Breit MF Blue Hills, LLC from January 1, 2018 through January 23, 2023, in relationship to client ID AG259791, . . . in addition to: 1) Notice of payment determination (calendar year 2018, 2019, 2020 and 2021). 2) Leased housing quality control form (calendar year 2018, 2019, 2020 and 2021). In addition, correspondence between Boston Housing Authority and Breit MF Blue Hills, LLC/Prynne Blue Hills Management Co. and Attorney at Law . . . from January 1, 2018 through June 30, 2023, in relation to Client . . ., and if these documents are not within BHA’s custody, who may I contact for discloser of these records request: 3) Rent Increase Forms, 4) Rent Roll Forms, 5) Notice to Breit of application to household adding [an identified individual] and 6) Notice to Breit sent May 26, 2020. Prior Appeal This request was the subject of a prior appeal. See SPR23/2127 Determination of the Supervisor of Records (September 21, 2023). SPR23/2127 was closed after this office learned that the Authority intends to provide a supplemental response. The Authority provided a 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

Sophia Elia SPR23/2284 Page 2 October 10, 2023 response on September 22, 2023, claiming Exemption (c) of the Public Records Law to withhold the records from disclosure. While this appeal was pending, the Authority provided a supplemental response on September 29, 2023. 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 agency or municipality 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) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based…”); 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). The Authority’s September 22nd and 29th Responses In its September 29, 2023 response, the Authority states, “[a]lthough the records are exempt from disclosure as public records, [Mr. Christian] is entitled to his own personal records. The [Authority] previously provided these records to him numerous times. The only requested records that the [Authority] has not provided are those records that do not exist. In light of the fact that the [Authority] already provided the requested records, we do not know how this matter has turned into a public records dispute.” In the Authority’s previous response on September 22nd, the Authority informed Mr. Christian as follows: … you are entitled to your own personal records as an individual and not as a member of the general public. The Authority has previously sent you all the records that you requested from your personal file, including several duplicates, on the following dates: 1/13/2023; 3/15/2023; 4/24/2023; 5/8/2023; and 5/10/2023. In a telephone conversation with a representative of the Authority, the representative informed an attorney in the Public Records Division that the only records that do not exist and not in the Authority’s possession are current rent increase records or information.

Sophia Elia SPR23/2284 Page 3 October 10, 2023 Current Appeal In his appeal, Mr. Christian asserts, “I have received a notice from my landlord Breit, asking me to vacate the unit because they are claiming I have been none compliant for the past 4 years with the lease agreement, by not agreeing to recertify with the management company.” Mr. Christian is advised that the Supervisor has no authority to make any determinations pertaining to the issue raised in his appeal. 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. Att’y 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). Where the Authority has previously provided records responsive to Mr. Christian’s request, the basis of his appeal is unclear. In compliance with the Public Records Law, the Supervisor of Records may only issue determinations where a violation of G. L. c. 66, § 10 has occurred. G. L. c. 66, § 10A(a). Conclusion Mr. Christian is reminded that all petitions for appeal “shall specifically describe the nature of the requestor’s objections to the response or failure to timely respond.” 950 C.M.R. 32.08(1)(f). Mr. Christian may wish to clarify his specific objections to the Authority’s response. Sincerely, Manza Arthur Supervisor of Records cc: Michael Christian Dean Papademetriou, Esq.