Holly Robichaud v. Executive Office of Housing and Livable Communities (SPR 20251445)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 4, 2025 SPR25/1445 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 Holly Robichaud appealing the response of the Executive Office of Housing & Livable Communities (Office/EOHLC) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 25, 2025, Ms. Robichaud sought the following: [1] The number of people in the Home Base program in 2020, 2021, 2022, 2023, and 2024[;] [2] How many people in the Home Base program have been residents of Massachusetts for less than one year[?][;] [3] Has the Commonwealth of Massachusetts paid for any damage at the hotels being used for emergency assistance housing? If so, how much has the state spent? Can you supply a list of damage? The Office responded on April 8, 2025. Unsatisfied with the Office’s response, Ms. Robichaud petitioned the Supervisor of Records, and this appeal, SPR25/1445, was opened as a result. Subsequently, the Office provided additional information concerning this appeal in an email to this office on May 30, 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

Adrian Walleigh, Esq. SPR25/1445 Page 2 June 4, 2025 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 April 8th Response In its April 8, 2025 response, the Office stated, “[p]lease be advised EOHLC intends to provide records responsive to the request but is notifying you we are extending the responsive timeline to 15 business days following the initial receipt of the request for public records pursuant to G.L.c. 66, § 10(b)(vi).” The Office additionally noted, “EOHLC intends to utilize the entirety of the statutorily allowable 15 business days, making our response due on April 2, 2025 [sic].” In an email to this office on May 30, 2025, a representative of the Office further advised, “EOHLC received the attached appeal last week. I am writing to confirm that we are working on a response and intend to reply to the requestor on or before June 5th.” Current Appeal In her appeal petition, Ms. Robichaud states, “I filed this Public records request on March 25. I received a letter they needed more time. That extension has long passed. I would like this request honored.” No Duty to Answer Questions Ms. Robichaud 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 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. Robichaud submitted to the Office questions in Items 2 and 3 of her request, I find the Office has no duty under the Public Records Law to answer such questions. If Ms. Robichaud seeks specific documents from the Office, she may wish to submit a public records request to the Office’s records access officer.

Adrian Walleigh, Esq. SPR25/1445 Page 3 June 4, 2025 Timeliness of Providing Records G. L. c. 66, § 10(b) provides, in pertinent part, that if the magnitude or difficulty of the request unduly burdens the other responsibilities of the agency or municipality such that the agency or municipality cannot provide records within 10 business days, the agency or municipality must inform the requestor in writing within 10 business days. With respect to the timeframe to produce responsive records, the written response shall: identify a reasonable timeframe in which the agency or municipality shall produce the public records sought; provided, that for an agency, the timeframe shall not exceed 15 business days following the initial receipt of the request for public records and for a municipality the timeframe shall not exceed 25 business days following the initial receipt of the request for public records; and provided further, that the requestor may voluntarily agree to a response date beyond the timeframes set forth herein. G. L. c. 66, § 10(b). Where Ms. Robichaud submitted Item 1 of her request on March 25, 2025, it is unclear why the Office has not provided the responsive records. 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). 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); see also G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). Conclusion Accordingly, the Office is ordered to provide Ms. Robichaud with a response to Item 1 of 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: Holly Robichaud