Aschleigh Jensen v. Amherst, Town of - Office of the Town Clerk (SPR 20232558)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 8, 2023 SPR23/2558 Susan Audette Town Clerk Town of Amherst 4 Boltwood Avenue Amherst, MA 01002 Dear Ms. Audette: I have received the petition of Aschleigh Jensen appealing the response of the Town of Amherst (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 10, 2023, Ms. Jensen requested the following information regarding the Town’s affordable housing: [1] How many [S]ection 8 vouchers are being used to house people in Amherst? [2] How many Massachusetts voucher system vouchers are currently being used for housing in Amherst? [3] How many tax credit apartments are there in Amherst? [4] How many apartment units are straight to 30% of one’s income units (for example village apartments)? [5] Are there any other low income housing types in Amherst? [6] Are all these types of low income housing captured in the initial permit? [7] What is the total housing stock of Amherst? [8] What is 10% of that housing stock? [9] How are you calculating that the [T]own is complying with the necessary 10% affordable units mandated by the state for Amherst? and, [10] How is the [T]own making information about affordable housing numbers and types transparent and easily obtained by residents? On October 24, 2023, the Town provided a response to Ms. Jensen. As a result of the Town’s response, Ms. Jensen petitioned the Supervisor of Records and this appeal was opened. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all 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

Susan Audette SPR23/2558 Page 2 November 8, 2023 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). 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). Once fees are paid, a records custodian must provide the responsive records. Current Appeal In her petition, Ms. Jensen asserts, “… I wish to appeal this request because [the Town] gave very little information. I asked the [Town] several questions about their kinds of affordable housing and the numbers in each category. The [T]own Planner didn’t answer any of the questions, he says the Amherst [H]ousing [A]uthority would know. The Amherst [H]ousing [A]uthority doesn’t know necessarily either but I will work on a separate request for that.” The Town’s October 24th Response In its October 24, 2023 response, the Town provided the following: [1] The Amherst Housing Authority would have this number; [2] The Amherst Housing Authority would have this number; [3] There is no local record listing tax credit apartments. However, the Town’s detailed SHI (see attached) shows the subsidizing agency for the affordable units. It is my understanding that these units, with the exception of the Group Homes, have or had tax subsidies; [4] There is no local record listing this information. This would take deed and permit research. For instance, the recently completed East Gables has units that are priced to be affordable for households earning up to 30% Area Median Income. In order to determine this number for all the affordable properties would take researching the permits as well as records at the Registry of Deeds. Another source is the Housing Navigator . . . an online resource to find affordable units. You can search by Town and then click through the property details to learn about the income levels;

Susan Audette SPR23/2558 Page 3 November 8, 2023 [5] The units on the Subsidized Housing Inventory (SHI) are considered capital ‘A’ affordable because they meet the State’s standards. There are other lowercase ‘a’ affordable units in Town that may or may not meet these standards and are therefore not listed. For instance an Accessory Dwelling Unit (ADU) may have an affordable rent, but the Town would not have a record of it because it isn’t on the SHI. Similarly, if a landlord charges a lower rental amount or if a homeowner sells their property below market rate, these lowercase ‘a’ affordable units are not on the SHI and are not recorded by the Town. Another example are units rented by voucher holders, which are not listed on the SHI but are considered affordable; [6] Not necessarily, but most are captured in the initial permitting. Permits capture capital ‘A’ affordable units if they are initially planned to be affordable and are permitted with this understanding. Most affordable units receive subsidy and financial support, which allows them to be rented or owned at a discount. This is a financial part of development that is separate from permitting. For instance, a project that was permitted with market rate units could refinance in the future (i.e. to fund a renovation) and use an affordable subsidy program that would then require affordable units; [7] In terms of the [SHI], this is a State program with information online . . . The second attachment is the most recent SHI provided by the State, showing the total number year round housing units, the total number of development units and total number affordable units for Amherst, as well as every other municipality; [8] The SHI includes this information. The SHI shows Amherst having 10,8684 total year round housing units and 10% of this is 1,068; [9] The State calculates the 10%; the Town does not; [10] The SHI information is public and listed on the State’s website, the Housing Navigator is a public webpage, The Housing Trust and Amherst Housing Authority help to educate the public. When an affordable development is initially opened, there is a marketing plan and public outreach, often generating long waitlists. Social service agencies in Town help refer potential tenants to affordable units. No Duty to Answer Questions, Conduct Research or Create Documents Ms. Jensen is advised that 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, 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. Att’y Gen. 157, 165 (May 18, 1977). Where Ms. Jensen submitted to the Town a list of questions, I find the Town is not required under the Public Records Law to answer such questions; nor is the Town required to create documents in response to a public records request. Consequently, where the Town provided information that it has in its possession, I find that the Town has met its burden in responding to the request.

Susan Audette SPR23/2558 Page 4 November 8, 2023 Authority of the Supervisor In her petition, Ms. Jensen asks a series of questions regarding the process and/or procedures involved in affordable housing. Ms. Jensen asks the following: Is the [T]own itself responsible for capturing this information in the initial permit? Or, updating it as the permit expires its’ affordable housing, only some expire? Or is that [the] state’s responsibility solely? A tax credit apartment isn’t on the permit when the application for the project is approved? Ms. Jensen is advised, that these inquiries are beyond the authority of the Supervisor of Records. The Supervisor of Records only has authority over the Public Records Law and its Regulations in rendering determinations on the public nature of records requested under the Public Records Law. Therefore, I am unable to opine on these questions. Conclusion Accordingly, I will consider this administrative appeal closed. Sincerely, Manza Arthur Supervisor of Records cc: Aschleigh Jensen Nathaniel Malloy