Young Kim v. Cambridge, City of - Office of the City Clerk (SPR 20250658)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 24, 2025 SPR25/0658; SPR25/0661 Seah Levy Public Records Access Officer City of Cambridge 795 Massachusetts Avenue Cambridge, MA 02139 Dear Ms. Levy: I have received the petition of Young Kim appealing the response of the City of Cambridge (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On December 26, 2024 and January 28, 2025, Young Kim requested the following records respectively: SPR25/0658 ... funding request applications to the Cambridge Affordable Housing Trust for acquisition of 2072 Mass Ave and Roseland/Frost Portfolio[.] SPR25/0661 My Public Records Request for the applications for acquisition funding of 2072 Mass Ave and Roseland/Frost Portfolio was denied because they were part of minutes and documents of executive session. I missed the Board Meeting on 1/23 because it was not on the Open Meeting Portal. Please kindly inform me if this issue was voted on at the meeting and if what the decision was. And please inform me how I should proceed to obtain these documents. The City provided a response to Young Kim on January 10, 2025. Unsatisfied with the response, Young Kim petitioned this office and these appeals, SPR25/0658 and SPR25/0661, were opened as a result. Subsequently, I learned that the City provided further responses to Young Kim on January 30, 2025, February 14, 2025, and March 19, 2025, to which Young Kim appealed. The City provided a further response on March 20, 2025 to which Young Kim appealed. 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

Seah Levy SPR25/0658; SPR25/0661 Page 2 March 24, 2025 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. Att’y 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 City’s January 10th, January 30th, February 14th, March 19th, and March 20th Responses In its January 10, 2025 response, the City cited Exemption (a) and specifically cited the statute, G. L. c. 30A, §§ 18-25, relating to executive session minutes. The City stated, “[t]he records cannot be released until the review and vote is undertaken. The Board has been informed of the request, and the review was placed on the agenda for their next session ... Please note that while this response is a denial, this request has been brought to the attention of the Board, and they will vote on whether to release these records at the next meeting, on January 23rd. I suggest re-submitting this request either just before or on January 23rd.” In its January 30, 2025 response, the City produced certain records “electronically, pursuant to 950 CMR § 32.07(2)(m)...” In its February 14, 2025 response, the City asserted: First, as noted above, Mr. Kim’s December 26, 2024 public record request did not request Trust minutes. It was not until January 28, 2025 that Mr. Kim submitted a public records request asking for the Trust’s previous executive session minutes. Thus, the temporal sequence Mr. Kim is suggesting is illogical and incorrect. Second, the Trust was under no obligation to make specific reference to Mr. Kim’s public record request in the Trust’s January 23, 2025 meeting agenda of its January 23, 2025 meeting. Instead the Trust’s obligation is to review executive session minutes “at reasonable intervals” or “upon request” and meet to determine whether release of executive session minutes is appropriate. On January 23, 2025

Seah Levy SPR25/0658; SPR25/0661 Page 3 March 24, 2025 the Trust reviewed, in part, executive session minutes for the Trust’s previous executive sessions on September 26, 2024, and February 22, 2018 and approved them for release. Within days these minutes were posted on the City’s website. Accordingly, the Trust complied with the OML, because Mr. Kim’s previous public record request to the City did not request previous Trust executive session minutes nor was the Trust obligated to otherwise reference any public record request in its meeting agenda. In its March 19, 2025 response, the City advised, “[t]he City has complied with its Public Records Law obligations concerning both of Requester’s appeals (SPR25-0658 and SPR25- 0661). On January 10, 2025 the City properly denied Requester records under Exemption G.L. c. 4 § 7(26)(a) in response to Requester’s December 26, 2024 request, as the purpose for the executive session had not yet expired ... The City appropriately withheld documents responsive to Requester’s first request and provided Requester records in response to Requester’s second request. As the City has complied with its Public Records Law obligations concerning the Requester’s two complaints, the Requester’s appeals (SPR25-0658 and SPR25-0661) should be denied.” In its March 20, 2025 response, the City stated: 1. As PRAO, once I knew that there was a request for these records, I contacted the Trust and asked if they could vote on releasing these records. I informed Young Kim that I had done so, and that he could re-submit his request. The Trusted voted at the very next available opportunity. 2. Young The Requester asked for the documents given to the CAHT. The documents supplied to Young Kim were the documents given to the CAHT. No other documents were given to the CAHT at the Executive Session. 3. Young Kim has stated: “I did not ask for the minutes of the executive sessions, just the documents presented at those sessions.” By doing so, Young Kim has agreed that he did not ask for the Executive Minutes but only asked for the documents provided to the CAHT. I have provided those records. I would not have been able to provide these records if the Trust had not voted to release these records, so, [i]n addition, I believe the question of whether the Board voted to release these records has been effectively answered without providing the Executive Minutes. Current appeal In the appeal dated March 10, 2025, Young Kim states, “... two documents were provided under PRR #P250156-012825... but they were memos to the Trust from the Community Development Department recommending approval of applications, not the applications

Seah Levy SPR25/0658; SPR25/0661 Page 4 March 24, 2025 themselves. I immediately requested the correct documents on January 30, 2025 ... but have yet to receive a response.” In the appeal dated March 20, 2025, Young Kim states, “[t]his supplemental information raises a more serious question ... the ‘Trust serves as both a policy advisory board and a loan committee’ according to its webpage. How could a loan committee act on a loan application without examining the loan application itself but rely solely on CDD staff’s recommendations? But this is subject for further investigation by Cambridge City Manager and City Council.” No Duty to Answer Questions 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). In compliance with the Public Records Law, the Supervisor of Records may only issue determinations where a violation of G. L. c. 66, § 10 has occurred. See G. L. c. 66, § 10A(a). Given that Young Kim is posing questions and seeking further investigation by Cambridge City Manager and City Council, no violation of G. L. c. 66, § 10 has been asserted by Young Kim in the March 20, 2025 appeal, therefore, I am unable to issue a determination at this time. Conclusion Accordingly, I will now consider these administrative appeals closed. Sincerely, Manza Arthur Supervisor of Records cc: Young Kim