Gail Waterhouse v. Boston, City of - Office of the Mayor (SPR 20232944)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 20, 2023 SPR23/2944 Shawn A. Williams, Esq. Director of Public Records Records Access Officer City of Boston One City Hall Square Boston, MA 02201 Dear Attorney Williams: I have received the petition of Gail Waterhouse, of WCVB Channel 5 Boston, appealing the response of the City of Boston (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 27, 2023, Ms. Waterhouse stated, “...so I am wondering if you can confirm for us that Maloney Properties handles all of the lotteries (reviewing applications and assigning lottery numbers, etc.) for the city? If not, who are the other entities who handle this process?” On December 4, 2023, Ms. Waterhouse clarified her request and sought a “... copy of all email correspondence between [an identified individual] and TheMezz@maloneyproperties.com ... or any other employee of Maloney Properties.” The City responded on November 27, 2023, November 29, 2023, December 1, 2023 and December 15, 2023. Unsatisfied with the responses, Ms. Waterhouse petitioned this office and this appeal, SPR23/2944, 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 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 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

Shawn A. Williams, Esq. SPR23/2944 Page 2 December 20, 2023 order to withhold a requested record. G. L. c. 66, § 10(d)(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 City’s November 27th, November 29th, December 1st and December 15th responses In its November 27, 2023, November 29, 2023 and December 1, 2023 responses, the Director of Communications of the Mayor’s Office of Housing provided certain information to Ms. Waterhouse in response to her request. In its December 15, 2023 response, the City stated, “[t]his response applies only to records that exist and are in the custody of the City. See A Guide to the Massachusetts Public Records Law, p. 32, n.115. It is expected that a custodian of records must use her superior knowledge of her records with respect to responses to public records requests. 950 CMR 32.04(5).” In a December 5, 2023 response, Maloney Properties, Inc. stated, “[e]mail communication between Maloney Properties and applicants who apply to our lotteries is not in public records.” Current appeal In her appeal, Ms. Waterhouse asserts, “[a]ccording to statements from the city of Boston’s Affirmative Fair Housing Marketing office, which runs the city’s affordable housing lotteries, the city requires the third party partner company, Maloney Properties in the case of this request, to keep a log of all correspondence between lottery applicants and themselves.” Public records; agency relationship Public records must be maintained and kept in a manner that allows access by the general public, as they are subject to mandatory disclosure upon request. G. L. c. 66, § 10(a); see also Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979). The City is advised that where a public entity contracts with a third party to fulfill its public duties, and the public entity exercises control over that third party, an agency relationship is created. See Fifty-one Hispanic Residents of Chelsea v. City Committee of Chelsea, 421 Mass. 598, 607 (1996) (while subject to control of a public entity as a principal for purposes of performing public duties, private university is a public agent). Wherever a record custodian keeps original public records in a location other than the government building, he or she has a duty to make the public records available in a location convenient to the general public for inspection and copying.

Shawn A. Williams, Esq. SPR23/2944 Page 3 December 20, 2023 Based on the City’s response, it remains unclear whether there is an agency relationship between the City and Maloney Properties, Inc. As such, I find that the City must provide additional information regarding the scope of the relationship between it and Maloney Properties, Inc. in order to determine whether it has met its burden under G. L. c. 66, § 10(a)(ii) to provide records that are in the possession, custody, or control of the custodian of records at the time of the request. Conclusion Accordingly, the City is ordered to provide Ms. Waterhouse with a response to the request in a manner consistent with this order, the Public Records Law, and its Regulations within ten business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. Ms. Waterhouse may appeal the substantive nature of the City’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Gail Waterhouse