Lisa French v. Executive Office of Housing and Livable Communities (SPR 20242519)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 18, 2024 SPR24/2519 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 Lisa French 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 August 30, 2024, Ms. French queried: [1] Policy and procedure for the selection of state appointees to local redevelopment authorities in general and the Hull Redevelopment Authority in particular: How do residents apply for the position of state appointee - is there any other method besides the online form on the “Survey” page on the official mass.gov web site? If residents may apply by mail, what person and address should applications be mailed to? Who, specifically, sees and/or reviews applications for state appointees to local redevelopment authorities? Who, exactly, makes the final decision? … M.G.L. Part I, Title XVII, Chapter 121B, Section 5 states that both elected and appointed members of redevelopment authorities serve 5 year terms (except for the initial cohort). How should the public be notified that a state appointee’s term is ending (a state appointee’s seat will become vacant)? How should residents be notified that they are invited to apply for that state appointee seat on a redevelopment authority? Please provide documentation describing this process. … Does the Governor, EOHLC (previously, the DHCD or HUD) or another office sanction the automatic renewal of a state appointee’s 5-year term (without public notice)? … Please provide records (Governor, EOHLC 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. SPR24/2519 Page 2 September 18, 2024 (previously, the DHCD or HUD) or another office) documenting the multiple terms that [a named individual] served as state appointee? … Is a local redevelopment authority required to advertise publicly that a state appointee’s term is ending (the seat will be vacant)? Is the local authority required to invite residents to apply for the state appointee seat? … Are state appointees required to undergo a performance review or evaluation at any point during their 5-year term? Please provide documentation describing the review process. … Please provide records documenting any performance evaluations of [a named individual] (state appointee to the Hull Redevelopment Authority for 13 years). … [2] Information about state appointees to redevelopment authorities: Why is there no information about state appointees to redevelopment authorities available to the public on the official website of the Commonwealth of Massachusetts? Why is the online application form misleadingly called a ‘Survey’ instead of an ‘Application Form’? For questions about a specific application, questions about the application process, or questions about the role and responsibilities of the state appointee to a redevelopment authority, who would a resident contact and how would a resident contact that person? Why is that contact information not available on the official Mass.gov web site? [3] Function or responsibilities of state appointees to local redevelopment authorities: Do state appointees to a redevelopment authority have any function or responsibilities that differ from elected members of a redevelopment authority? What is the rationale for a state appointee? How are state appointees informed about their duties and responsibilities? Please provide that documentation. [4] The ‘comprehensive training program for members of a housing or redevelopment Authority’ described under M.G.L. Part I, Title XVII, Chapter 121B, Section 5B: Do all state appointees to local redevelopment authorities undergo the required ‘comprehensive training’ described in Section 5B? Where is information about specific training programs for particular redevelopment authorities publicly available?

Adrian Walleigh, Esq. SPR24/2519 Page 3 September 18, 2024 Please provide a copy of the training program used (historically and currently) to instruct members of the Hull Redevelopment Authority. Was any type of training program ever implemented for members of the Hull Redevelopment Authority (elected and/or appointed members)? Please provide confirmation of that comprehensive training (names of individuals and the dates of completion). If members of a local redevelopment authority never received the required training, who is responsible - Governor, EOHLC (previously, the DHCD or HUD), another state agency, former redevelopment authority members, Town officials? [5] State oversight or monitoring of local redevelopment authorities: Does the Governor, EOHLC (previously, the DHCD or HUD) or another office regulate, oversee or monitor a local redevelopment authority’s actions when the “department” is not currently reviewing a draft or an approved urban renewal plan? If a redevelopment authority isn’t working with a draft or approved URP, are board members of a local redevelopment authority still obligated to abide by the laws that should be addressed by a “comprehensive training” program: (i) the open meeting law established pursuant to sections 18 to 25, inclusive, of chapter 30A (il) the public records law established pursuant to chapter 66 (ili) the conflict of interest law established pursuant to chapter 268A (iv) the uniform procurement act established pursuant to chapter 30B (v) state finance provisions established pursuant to chapter 29 (vi) fraud prevention (vii) fiduciary responsibilities How would the Governor, EOHLC (previously, the DHCD or HUD) or another office become aware that members of a local redevelopment authority are flouting any of these laws? Would the state rely on residents to report the misconduct? Who would residents report such misconduct to - Town officials, Governor, EOHLC (previously, the DHCD or HUD) or another office? Does the state appointee to a local redevelopment authority have any regular contact with the Governor, EOHLC (previously, the DHCD or HUD) or any another state agency? Does the state appointee have any special responsibility to report misconduct?

Adrian Walleigh, Esq. SPR24/2519 Page 4 September 18, 2024 What if the state appointee was responsible for such misconduct? Can a state appointee be removed? What is the process for removal? Who would make the decision to remove and what behavior is serious enough to merit removal? Please provide documentation describing this policy and process. [6] Redevelopment authorities and urban renewal plans: Is a local redevelopment authority a Town board and accountable to residents, or is it an entirely separate and independent body? How does the state define the relationship between a local redevelopment authority and Town government? If a local redevelopment authority has acquired land through the legal process of eminent domain and has cleared it for redevelopment, is that land owned by the Town (is it public land?) or is it owned by the 5 redevelopment authority members, who may manage it like their own personal property? Is it appropriate for a Town Building Inspector and/or Building Commissioner to serve on (or chair) the board of a local redevelopment authority? Is it appropriate for a local developer to serve as a full-time Building Inspector and/or Commissioner and to also serve on a local redevelopment authority at the same time? If a redevelopment authority owns a specific set of contiguous unimproved parcels, is it appropriate for the redevelopment authority to pay for the repair of historic structures or Town infrastructure outside of and unrelated to the authority’s parcels and unrelated to any draft urban renewal plan? Is it appropriate for a redevelopment authority to decide that its goal is to pay down Town debts and balancing the Town’s budget rather than improve its parcels? Is it appropriate for a redevelopment authority to donate money to local charities or community organizations rather than use its money to improve the land cleared for redevelopment? I can’t find answers to these questions in M.G.L. Chapter 121B or C.M.R. 25.00. If they are addressed under other laws and regulations, please identify them. On September 4, 2024, the Office provided a response. Unsatisfied with the Office’s response, Ms. French petitioned the Supervisor of Records, and this appeal, SPR24/2519, was opened as a result.

Adrian Walleigh, Esq. SPR24/2519 Page 5 September 18, 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. See 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 September 4th Response In its September 4, 2024 response, the Office states, “[t]he public records office is not equipped to answer questions, just to provide records. To that end, I provide you with the citation M.G.L. c. 121B Sec 5, which determines how state appointments are made, and the Information that the Hull Redevelopment Authority state appointee is Joan Senatore, and their term is 9/19/2023 – 1/16/2025.” Subsequently, on September 18, 2024, the Office sent an email to this office providing a summary of the appeal. Current Appeal In her appeal petition, Ms. French states, “I’m asking for the documents and materials that answer these questions. NONE of the questions I asked are legal questions!!! I’m absolutely certain that EVERYTHING I’m asked about is information the public is entitled to know!!! … I insist that EOHLC records staff consult with individuals who are informed or else do the necessary research. If the EOHLC Counsel & Records Access Officer ignored my request because it included question marks, he could have simply reframed the questions as subtopics. I will do that here (in red).” No Duty to Answer Questions, Conduct Research Ms. French is 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

Adrian Walleigh, Esq. SPR24/2519 Page 6 September 18, 2024 time of the request. See G. L. c. 66, § 10(a)(ii). Pursuant to 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). Where Ms. French submitted to the Office a list of questions, I find the Office has no duty under the Public Records Law to answer such questions. If Ms. French seeks specific documents from the Office, she may wish to submit a public records request to the Office’s records access officer. Conclusion Accordingly, I will consider this administrative appeal closed. Sincerely, Manza Arthur Supervisor of Records cc: Lisa French