Karen Paris v. Executive Office of Housing and Livable Communities (SPR 20240002)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 16, 2024 SPR24/0002 Adrian Walleigh, Esq. Legal Counsel/Public Records Officer Executive Office of Housing and Livable Communities 100 Cambridge Street Boston, MA 02114 Dear Attorney Walleigh: I have received the petition of Karen Paris appealing the response of the Executive Office of Housing and Livable Communities (EOHLC) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 14, 2023, Ms. Paris requested: [1] Who [the] LOAN PROGRAM MONITOR is & contact information; and [2] [W]hen was the last time this Property was investigated and any and all docs and reports? On November 14, 2023, Attorney Adrian Walleigh informed Ms. Paris, “EOHLC has received your request and will begin the search for responsive documents.” After receiving records, on December 4, 2023, Ms. Paris emailed Attorney Walleigh stating, “…I was able to open it but it’s not for the public records request that I requested. I requested seven Memorial Road or five Memorial Road in Somerville Mass. I’m waiting documents here from different locations even one of them is from East Hampton Housing Authority this is not public records request that I requested. I request St Pauli caps Apartments located at 7 Memorial Road or 5 Memorial Road in Somerville [MA]. [P]lease advise thank you.” On December 4th, Attorney Walleigh informed Ms. Paris, “[m]y sincere apologies, I conflated your request with another one. We will continue to work on your request.” On December 12, 2023, Attorney Walleigh wrote, “…I will ask the staff that were providing the documents.” In a December 18, 2023 email to Attorney Walleigh, Ms. Paris stated, “…we still have not received the documents you said 6 days ago you were going to have them send … could you 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

Adrian Walleigh, Esq. SPR24/0002 Page 2 January 16, 2024 please inform when we are going to receive them?” That same day, Attorney Walleigh responded to Ms. Paris, “[m]y apologies, I will once again reach out to my colleague.” In a December 25, 2023 email to Attorney Walleigh, Ms. Paris states, “[t]his is a Public [R]ecords request could you please inform me when I will be receiving it? As the one you sent me wasn’t for my request it was someone else. And it is becoming clear that the laws are not being followed in reference to the request …” On December 28, 2023, Attorney Walleigh emailed Ms. Paris, stating, “I will again reach out to my colleague who is responsible for providing me with any responsive records. Unfortunately, holiday schedules have slowed down timelines on public records request[s].” On January 2, 2024, after not receiving the records requested, Ms. Paris 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 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); 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. 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. Timeliness of Response; Production of Records 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). 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). 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). If the EOHLC has a record or document responsive to the

Adrian Walleigh, Esq. SPR24/0002 Page 3 January 16, 2024 inquiries, the EOHLC should provide the information. The EOHLC must clarify whether it possesses any record or document responsive to these inquiries. The EOHLC is advised, G. L. c. 66, § 10(b) provides, in pertinent part, that if the magnitude or difficulty of the request unduly burdens the other responsibilities of the agency or municipality such that the agency or municipality cannot provide records within 10 business days, the agency or municipality must inform the requestor in writing within 10 business days. With respect to the timeframe to produce responsive records, the written response shall: identify a reasonable timeframe in which the agency or municipality shall produce the public records sought; provided, that for an agency, the timeframe shall not exceed 15 business days following the initial receipt of the request for public records and for a municipality the timeframe shall not exceed 25 business days following the initial receipt of the request for public records; and provided further, that the requestor may voluntarily agree to a response date beyond the timeframes set forth herein. G. L. c. 66, § 10(b)(vi). Where Ms. Paris’ request was submitted on November 14, 2023, and that to date the EOHLC has not provided any responsive records, I find the EOHLC has not met its burden in responding to the request in accordance with G. L. c. 66, § 10(b). Accordingly, if the EOHLC is in possession of records responsive to the request, the EOHLC must provide an estimated date as to when it expects to provide the records. See G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). To the extent possible, the EOHLC must provide responsive records on a rolling basis. Conclusion Accordingly, the EOHLC is ordered to provide Ms. Paris with a response to her request 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: Karen Paris