Melody Anderson v. Executive Office of Housing and Livable Communities (SPR 20242117)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 7, 2024 SPR24/2117 Adrian Walleigh, Esq. Counsel & Public Records Officer Executive Office of Housing & Livable Communities 100 Cambridge Street, Suite 300 Boston, MA 02114 Dear Attorney Walleigh: I have received the petition of Melody Anderson appealing the response of the Executive Office of Housing & Livable Communities (Office) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 27, 2024, Ms. Anderson requested five categories of records. Subsequently, on July 2, 2024, I understand Ms. Anderson narrowed her request to the following: [1.] Any communication from May 1 2024 to June 27, 2024 between EOHLC and rcapsolutions.org that mentions [a named individual]. [2.] Any communication from October 1, 2023 to June 27, 2024 between EOHLC and BostonHousing.org that mentions [the named individual]. The Office responded on July 19, 2024, providing numerous responsive records. Unsatisfied with the Office’s response, and contending that the Office possesses additional responsive records, Ms. Anderson petitioned this office, and this appeal, SPR24/2117, 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

Adrian Walleigh, Esq. SPR24/2117 Page 2 August 7, 2024 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. The Office’s July 19th Response In its July 19, 2024 response, the Office provided numerous responsive records. In her appeal to this office, Ms. Anderson contends that the Office possesses additional records responsive to her request. No Duty to Answer Questions, Conduct Research, Create Documents Please be advised that 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). Additionally, 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). Further, 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). In a telephone conversation with this office on July 29, 2024, an attorney for the Office confirmed that the Office has provided all records responsive to Ms. Anderson’s July 2nd modified request. Conclusion Where the Office confirmed that it does not possess additional records responsive to Ms. Anderson’s request, I will now consider this administrative appeal closed. If Ms. Anderson is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, §§ 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies).

Adrian Walleigh, Esq. SPR24/2117 Page 3 August 7, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Melody Anderson