Jacquelyn Wehtje v. Fitchburg, City of - Housing Authority (SPR 20240091)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 24, 2024 SPR24/0091 Douglas Bushman, Esq. Chief Executive Officer Fitchburg Housing Authority 50 Day Street Fitchburg, MA 01420 Dear Attorney Bushman: I have received the petition of Jacquelyn Wehtje appealing the response of the Fitchburg 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 December 29, 2023, Ms. Wehtje requested “the most recent one year’s worth of invoices for the error and omissions insurance premiums by the FHA to protect the Director and board as well as copies of any paperwork from any claims filed against such insurance since it was first purchased in 2021.” The Authority provided a response on December 29, 2023. Unsatisfied with the response, Ms. Wehtje petitioned this office and this appeal, SPR24/0091, 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(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). 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

Douglas Bushman, Esq. SPR24/0091 Page 2 January 24, 2024 The Authority’s December 29th response In its December 29, 2023 response, the Authority asked Ms. Wehtje when she would be coming in to pick up the record requests. Current appeal In her appeal, Ms. Wehtje states the following: As you can see from the link I provided, the Fitchburg Housing Authority is only open Monday through Friday from 9 to 3 and I work then. All other records requests I have received from both the City of Fitchburg and the Commonwealth of Massachusetts have always been emailed to me. Preferred Format A records access officer must, to the extent feasible, provide public records to a requestor in electronic format unless the record is not available in electronic form or the requestor does not have the ability to receive or access the records in electronic format and if feasible, in the requestor’s preferred format. In the absence of a preferred format, the records must be provided in a searchable machine-readable form. See 950 C.M.R. 32.04(5)(d). In light of Ms. Wehtje’s appeal, I find the Authority must clarify whether the responsive records can be provided by email as Ms. Wehtje has requested, and whether the Authority has in its possession the records responsive to her request. I encourage the parties to work together to resolve the outstanding issues. Conclusion Accordingly, the Authority is ordered to provide Ms. Wehtje with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within 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: Jacquelyn Wehtje