Denise M. Regan v. Salem Housing Authority (SPR 20251040)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 29, 2025 SPR25/1040 Cathy Hoog Executive Director Salem Housing Authority 27 Charter Street Salem, MA 01970 Dear Director Hoog: I have received the petition of Denise M. Regan, Esq., appealing the response of the Salem Housing Authority (Authority/SHA) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 26, 2025, Attorney Regan requested the following records: [1] Copies of all Employee Check Signing Security Agreements in effective from 2022 to the present[;] [2] Copies of all policies and procedures for making electronic payments including policies and procedures for review and approval of payments and for the addition of vendors to the system[;] [3] Minutes from all SHA meetings from 1/1/2022 to the present. The Authority responded on March 31, 2025. Following correspondence from Attorney Regan dated April 1, 2025, the Authority provided an additional response in an email on the same date. Unsatisfied with the Authority’s responses, Attorney Regan petitioned this office and this appeal, SPR25/1040, was opened as a result. Subsequent to the opening of this appeal, the Authority provided a supplemental response to this office in an email dated April 16, 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). 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

Cathy Hoog SPR25/1040 Page 2 April 29, 2025 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 Responses In its March 31, 2025 response, the Authority provided a link to its website and stated, “[t]he SHA policies we have are listed on the website along with minutes from 2022 to present.” In an email replying to the Authority on April 1, 2025, Attorney Regan appeared to remind the Authority of Item 1 of her request and indicated, “I also requested . . . Copies of all Employee Check Signing Security Agreements in effective from 2022 to the present.” Additionally, regarding Item 2 of her request, Attorney Regan stated, “[a]re the past policies available on the website? If no, please forward them to me.” Subsequently, the Authority provided an additional response to Attorney Regan on the same date. Regarding Item 1 of the request, the Authority again provided a link to its website and advised, “[t]he Check Signing Security Agreement is posted on www.salemha.org[.]” Regarding Item 2 of Attorney Regan’s request, the Authority indicated, “any language update on policies are overwritten and stored with the new Board approved date(s). We don’t store outdated policy language.” The Authority further indicated, “[r]ecord retention requirements for public housing authorities can be found here” and provided a link to the Massachusetts Statewide Records Retention Schedule while noting that information concerning said record retention requirements “starts on page 62.” In its April 16, 2025 supplemental response to this office, the Authority provided an email exchange between Attorney Regan and the Authority dated April 9, 2025. The Authority notes that in her April 9th email to the Authority, Attorney Regan “outlines Denise’s concerns regarding a policy she was requesting” and “references how she found the older version of the policy in the SHA Board minutes that are archived on the SHA website . . .” The Authority explains in its supplemental response that the second and final email in the exchange concerns its April 9, 2025 reply to Attorney Regan. The Authority further indicates that the reply email “clarifies how the housing authority minutes are retained, how the minutes are records of all historical information as required per retention schedules, which include the older versions of policies that have been updated/adopted by the Board.” The Authority additionally argues that because Attorney Regan “share[d] the policy she was looking for with the Board in her email . . . as an attachment, . . . it was clear she easily found what she was

Cathy Hoog SPR25/1040 Page 3 April 29, 2025 looking for.” Upon review of the file, it is unclear whether the copy of Attorney Regan’s April 9, 2025 email provided by the Authority includes such an attachment. Current Appeal In her appeal petition, Attorney Regan indicates that “[t]here are two grounds for [her] appeal.” First, she asserts that the Authority has “not responded to [her] request of March 26, 2025,” as it concerns Item 2 of her request. Additionally, she contends that the Authority “has not provided records that it is required to retain under the Mass. Statewide Records Retention Schedule.” Based on Attorney Regan’s petition, I conjunction with the Authority’s responses, it is unclear if the Authority possess additional records responsive to Item 2 of the request. 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, where the Authority states in its April 1, 2025 response to Item 2 of the request that “any language update on policies are overwritten and stored with the new Board approved date(s)[,]” it remains unclear whether responsive records existed and were destroyed. See G. L. c. 66, § 10(a)(ii), (b)(ii). I find that the Authority must demonstrate whether it followed proper records retention protocol. Please note, the Authority must institute safeguards to ensure that all records are retained in accordance with both applicable law as well as the retention schedules promulgated by this office. G. L. c. 66, §§ 1, 8, 13, 15. The Authority must clarify these matters. Conclusion Accordingly, the Authority is ordered to provide Attorney Regan with a response to her 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: Denise M. Regan, Esq.