Eileen W. Mooney v. Great Barrington, Town of - Housing Authority (SPR 20240782)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 26, 2024 SPR24/0782 Tina Danzy Executive Director Great Barrington Housing Authority 2 Bernard Gibbons Drive Great Barrington, MA 01230 Dear Ms. Danzy: I have received the petition of Eileen Mooney appealing the response of the Great Barrington 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 January 30, 2024, Ms. Mooney stated: …when I was reviewing warrants, the invoice for deferred compensatory contributions who prepared the information. You said [an identified individual] did but that’s not on the invoice. Also, it’s payroll-related and I thought Adirondack provided such information. I’ll sign the warrant cover sheet once I have an invoice clarifying this or – if it’s easier to provide at your end, a copy of an acknowledgement of the payment from Empower or a copy of the cancelled check. I also thought that the list of the source of payments listed in the October bank statement would be available. I would like to see that, please. It was not in the packet for the January meeting. My understanding is that what I am requesting are public records. Therefore, I submit this as requested under the Public Records Law… On February 7, 2024, Ms. Mooney emailed the Authority, stating, “…I’m waiting for the Public Records request made on January 30 for information regarding preparation of the invoice for deferred compensatory contributions and the list of payments for the October 2023 bank statement … a copy of an acknowledgement of payment from Empower or a copy of the canceled check of the compensatory contributions payment would be acceptable…” On February 15, 2024, the Authority responded, “[h]ere you are Eileen I was mistaken which payment you were referring to. [H]ere is the one from October that was cleared on November 6th. 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

Tina Danzy SPR24/0782 Page 2 March 26, 2024 Unsatisfied with the Authority’s February 15, 2024 response, Ms. Mooney petitioned this office, 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. Current Appeal In her petition, Ms. Mooney states, “[m]y concern is only with the complete list of the source of each deposit shown in bank statements. The [Authority] provided only partial information for October [2023]; I want to know the source of all revenue. As I told [the Authority], I do not want the names of tenants whose rent checks were deposited. Rent is sufficient for such deposits.” Please be advised, under the Public Records Law a custodian is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d). In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See 32 Op. Att’y Gen. 157, 165 (May 18, 1977). 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). Based on Ms. Mooney’s appeal, it is unclear whether the Authority possesses additional records that may be responsive to Ms. Mooney’s request. The Authority must clarify this.

Tina Danzy SPR24/0782 Page 3 March 26, 2024 Conclusion Accordingly, the Authority is ordered to provide Ms. Mooney 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: Eileen W. Mooney