Melody Anderson v. Boston Housing Authority (SPR 20242188)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 15, 2024 SPR24/2188 Dean Papademetriou, Esq. General Counsel Public Records Manager Boston Housing Authority 52 Chauncey Street Boston, MA 02111 Dear Attorney Papademetriou: I have received the petition of Melody Anderson, appealing the nonresponse of the Boston 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 April 18, 2024, Ms. Anderson requested the following records: [1.] Civil rights policy[;] [2.] Reasonable accommodations policy[;] [3.] Grevience [sic] policy[;] [4.] Administrative plan[;] [5.] VAWA procedures[;] [6.] Termination policy[;] [7.] ISD policy & appeals[;] [8.] Copies of HUD guidelines for inspections including mold & ADA guidelines[;] [9.] All evidence for the [specified] hearing[;] [10.] All internal notes placed on [an identified individual’s] file[;] [11.] Copies of all releases that have been sent to [an identified individual;] [12.] All internal & external communications about [an identified individual’s] file (that includes notes, emails, phone calls, etc.)[;] [13.] Copies of emergency transfer policy[;] [14.] All your communications with HUD about [an identified individual’s] file[;] [15.] Copy of [an identified] civil rights complaints & the results[;] [16.] Copies of [an identified] HR complaint & the outcome[;] [17.] Copies of all reasonable accommodation training[.] 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

Dean Papademetriou, Esq. SPR24/2188 Page 2 August 15, 2024 Previous Appeals This request was the subject of previous appeals. See SPR24/1423 Determination of the Supervisor of Records (May 22, 2024) and SPR24/2028 Determination of the Supervisor of Records (July 30, 2024). In my July 30th determination, I closed SPR24/2028 in light of the Authority providing Ms. Anderson with a written response on July 18, 2024. Unsatisfied with the Authority’s response, Ms. Anderson petitioned this office, and this appeal, SPR24/2188, was opened as a result. While this appeal was pending, the Authority provided a supplemental response on August 12, 2024. 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. The Authority’s July 18th Response In its July 18, 2024 response, the Authority reiterates its previous May 14, 2024 response and states: The Requester . . . requested 17 types of records. In its 5/14/24 response, the BHA provided the following public records: [1.] Civil rights policy – See PDF in the [provided] google link . . . . The BHA previously provided it on 3/22/24. [2.] Reasonable accommodations policy – See PDF in the google link. The BHA previously provided it on 3/22/24. [3.] Grievance policy – This policy is part of the Administrative Plan. . . . [4.] Administrative plan – See PDF in the google link. The BHA previously provided it on 3/22/24.

Dean Papademetriou, Esq. SPR24/2188 Page 3 August 15, 2024 [5.] VAWA procedures – See PDF in the google link. The BHA previously provided it on 3/22/24. [6.] Termination policy – This policy is part of the Administrative Plan. . . . [13.] Copies of emergency transfer policy – This policy is part of the Administrative Plan. . . . [17.] Copies of all reasonable accommodation training – See PDF and audio file in the google link. . . . The BHA stated the following in response to these records: [7.] ISD policy & appeals – These are records of a different agency, the City of Boston Inspectional Services Department. [8.] Copies of HUD guidelines for inspections including mold & ADA guidelines – These are records of a different agency, the U.S. Department of Housing and Urban Development. The Authority also reiterates that in its previous response, it “stated that the records [responsive to Items 9-12, 14, 15, and 16] . . . are exempt from the public records law.” The Authority explains, “[n]evertheless, the BHA has previously provided these records to the Requester [on March 26, 2024].” The Authority explains that it provided all responsive records in its possession to Ms. Anderson and states that this includes “both those records that are considered public records, and those that are exempt from the public records law.” Consequently, the Authority “respectfully [requests] the Supervisor of Records to close this appeal with finality” where “the underlying substantive issue has been resolved” and the Authority “has complied with the Requester’s public records request.” Current Appeal In her appeal, Ms. Anderson states that the Authority did not provide records responsive to Items 11, 12, and 14-17 of her request. Additionally, where the Authority indicates in its July 18 response that records responsive to Item 7 are in the possession the City of Boston Inspectional Services Department, Ms. Anderson contends that she seeks records related to property that is not located in Boston and states that the City’s Inspectional Services Department would not possess responsive records for this reason. Further, it is my understanding that Ms. Anderson wishes to modify Item 8 of her request where she notes in this appeal that she does not seek “[c]opies of HUD guidelines for inspections including mold & ADA guidelines[,]” but records concerning the Authority’s interpretation of HUD guidelines for inspections, including mold and ADA guidelines. Subsequent to the opening of this appeal, in a telephone conversation between a Public Records Division staff member and a representative of the Authority on August 12, 2024, the Authority again confirmed that all responsive records have been provided and stated that it is not in possession of records responsive to Item 7, particularly as related to the municipality Ms. Anderson stated the above-mentioned property is located in. The representative also indicated their belief that the Authority did not possess records responsive to Ms. Anderson’s modification

Dean Papademetriou, Esq. SPR24/2188 Page 4 August 15, 2024 of Item 8 of her request, but confirmed they would conduct a search for records and provide a further response. The Authority’s August 12th Supplemental Response In its August 12, 2024 response, the Authority once more reiterates that it “provided all the public records in its possession that were responsive to this request.” The Authority additionally provides a Google share-link to its Administrative Plan and states the following regarding Items 7 and 8 of Ms. Anderson’s request: [7.] ISD policy & appeals – The BHA originally responded that it does not have these records in its possession and they are records of a different agency, the City of Boston Inspectional Services Department. . . . The BHA responds that it does not have these records in its possession and they are records of a different agency, the . . . Inspectional Services Department or its equivalent department [of the municipality Ms. Anderson states the above-mentioned property is located in]. [8.] Copies of HUD guidelines for inspections including mold & ADA guidelines – The BHA original responded that these are records of a different agency, the U.S. Department of Housing and Urban Development. The Requester modified her request as follows: BHA interpretations of HUD guidelines for inspections including mold & ADA guidelines. The BHA responds that it does not have written interpretations of these HUD guidelines. Nevertheless, to the extent that the BHA has written procedures on the implementation of these HUD guidelines, they are contained in the BHA’s Administrative Plan, which is located in the google link previously provided and included here. No Duty to Create Records Ms. Anderson is advised, under the Public Records Law, the Authority is not required to create records 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 G. L. c. 66, § 10(a); 32 Op. Att’y. Gen. 157, 165 (May 18, 1977). The duty to comply with requests for information extends only 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. 4, § 10(a)(ii). Conclusion Where the Authority has confirmed that it does not possess any additional responsive records, and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. If Ms. Anderson is not satisfied with the resolution of this administrative appeal, she is advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66 § 10(A)(c).

Dean Papademetriou, Esq. SPR24/2188 Page 5 August 15, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Melody Anderson