Rosemary Macero v. Boston Planning & Development Agency (SPR 20232999)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 28, 2023 SPR23/2999 Teresa Polhemus Executive Director/Secretary Records Access Officer Boston Planning & Development Agency One City Hall Square, 9th Floor Boston, MA 02201 Dear Ms. Cournoyer: I have received the petition of Rosemary Macero, Esq., of Macero Law, P.C., appealing the response of the Boston Planning & Development Agency (Agency/BPDA) to a request for public records. See G. L. c. 66 § 10A; see also 950 C.M.R. 32.08(1). On October 19, 2023, Attorney Macero requested the following records related to a named property: [1] All record of rent payments from 1991 to present including amount and date [2] All correspondence with the YMCA [3] All correspondence with any party relative to use of 150 3rd Ave/Constitution Inn at any Time [4] All plans provided to BPDA/BRA for any construction on premises from 2000 to present [5] All default notices to YMCA [6] All Lease amendments, request for assignment or sublet and responses from BPDA and any other document that pertains to use, occupancy of the 150 3rd Ave building [7] Records of any and all money received by the BPDA at any time for or on account of 150 3rd Ave pursuant to the Lease or otherwise [8] All documents which reference financing, refinancing of any note, bonds or other debt instrument which is secured by 150 3rd Ave including any documents executed by the BPDA/BRA to permit mortgage financing or debt financing using the 150 3rd Ave property as collateral by any party at any time and any refinance of any debt instrument and all associated documents related thereto. [9] All audits of income paid to or received by the YMCA or BPDA/BRA related to payments, made by or to or on account of the YMCA for any reason including any payments made for work done at the 150 3rd Ave Premises. 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

Danielle Cournoyer SPR23/2999 Page 2 December 28, 2023 [10] All correspondence with Mass Housing Finance Development, the City of Boston, the Commonwealth of Massachusetts related to any moneys requested, received, paid by or otherwise relating to moneys received by or on account of the YMCA, the BPDA/BRA on account of the 150 3rd Ave Property at any time. [11] All correspondence with the Secretary of the Interior or the US Government relative to audits of the Charlestown Navy Yard since its transfer including any audits, payments or other communications of any type or nature with the US Govt relative to the Charlestown Navy Yard including email, text message, phone records, audits, payments to or from the US Govt and any payments made on account of the YMCA as an Armed Services YMCA. [12] Any and all documents provided, produced or supplied by any proponent of the conversion of the 150 3rd Ave property to the “Helm” or the “Independence” related to the proposal of St. Francis and the POUA or their representatives at any time. [13] Documents identified in response to my request for answers to questions for proponents attached hereto for the presentation by proponents on October 19, 2023 attached hereto. On November 13, 2023, the Agency responded. Unsatisfied with the Agency’s response, Attorney Macero petitioned this office and this appeal, SPR23/2999, 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 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). Current appeal In her appeal, Attorney Macero claimed that the Agency did not provide her with the requested records 30 days after her request was accepted by the Agency.

Danielle Cournoyer SPR23/2999 Page 3 December 28, 2023 The Agency’s November 13th response In its November 13, 2023 response, the Agency stated the following: As you know from the previous public records requests that you have properly filed with the BPDA, Ms. Polhemus’ correct email address is Teresa.polhemus@boston.gov. Please be advised that your email dated October 19th was never received by any member of the Agency’s staff as the email accounts to which you sent your correspondence were incorrectly addressed with “@bpda.gov”. For example, you addressed your October 19th email to Teresa.polhemus@bpda.gov, rather than Teresa.polhemus@boston.gov. The Massachusetts Public Records Law also requires that a properly filed public records request include a “reasonable description of the requested record” (950 C.M.R. 32.06(1)(c)). Your correspondence dated October 30th lists a series of questions to which you are seeking answers from the Agency relative to the property located at 150 3rd Avenue in Charlestown, MA. Your correspondence also requests that the Agency provide “proof” to substantiate any claims its staff may make in answering your questions. It is the Agency’s position that your request for “proof” of a claim or answer that may be provided in response to your question does not constitute a properly submitted public records request, as it does not contain a “reasonable description” of a “requested record”. Therefore, the Agency will not be treating your October 30th correspondence as a properly submitted public records request. Now that your correspondence dated October 19th has been received by the Agency’s RAO by way of the email that you sent today, which was correctly addressed to Secretary Polhemus, the Agency will treat this request for public records as having been properly filed as of today’s date, November 13, 2023. 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). In accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). Where Attorney Macero is requesting records related to a named property, I find it is unclear whether the requested records exists and are in the Agency’s possession. To the extent that the requested records exist, I find that the Agency must provide them in a manner consistent with the Public Records Law or identify an exemption that applies to withhold the records from disclosure. G. L. c. 66, § 10(b). See G. L. c. 66, § 10(a) (records must be

Danielle Cournoyer SPR23/2999 Page 4 December 28, 2023 provided without unreasonable delay). To the extent possible, the Agency must provide responsive records on a rolling basis. Conclusion Accordingly, the Agency is ordered to provide Attorney Macero with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) 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. Sincerely, Manza Arthur Supervisor of Records cc: Rosemary Macero, Esq.