Karen G. Courtney v. Somerville Housing Authority (SPR 20252157)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 31, 2025 SPR25/2157 Emily Eschmann Records Access Officer Somerville Housing Authority 30 Memorial Road Somerville, MA 02145 Dear Ms. Eschmann: I have received the petition of Karen G. Courtney, appealing the response of the Somerville 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 June 27, 2025, Ms. Courtney requested: [R]ecords regarding the certification and inspection of the Modular Units constructed for Clarendon Hill … copies of all BBRS records, in accordance [with] 780 CMR 110-R3, received by Somerville Housing Authority (SHA)/ Preservation of Affordable Housing (POAH) and or Construction Manager Dellbrook (Dellbrook)[.] The Authority responded on July 7 and July 22, 2025. Unsatisfied with the Authority’s responses, Ms. Courtney petitioned this office and this appeal, SPR25/2157, was opened as a result. 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 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

Emily Eschmann SPR25/2157 Page 2 July 31, 2025 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 7th and July 22nd Responses In its July 7, 2025 response, the Authority stated that it did not possess the requested records, and recommended that Ms. Courtney forward her requests directly to POAH or Dellbrook. In its July 22, 2025 response, the Authority stated: As a prerequisite for producing records, M.G.L. c. 66 § 10(a)(ii) requires that records be within the possession, custody or control of the agency or municipality that the records access officers serve. Previously it was said that the requested records would likely be in the possession of POAH and Construction Manager Dellbrook. M.G.L. c. 66 § 13 as it is currently written, does not compel SHA to take steps to demand records from these parties unless the holder possesses them unlawfully. SHA does not believe that POAH or Dellbrook hold any of these records, inasmuch as they may exist, unlawfully. As a result, SHA reasserts that they are not required to provide the records requested because they are not in SHA possession. Current Appeal In her July 22, 2025 petition to this office, Ms. Courtney contended that the Authority was obligated to produce the requested records. Ms. Courtney further stated that the Authority had contracted with POAH and Dellbrook “… to carry out public work funded and authorized through legislative action.” Agency Relationship Please be 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). Further, in accordance with the Public Records Law, 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). Additionally, public records must be maintained and kept in a manner that allows access by the general public, as they are subject to mandatory disclosure upon request. G. L. c. 66, § 10(a); see also Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979).

Emily Eschmann SPR25/2157 Page 3 July 31, 2025 The Authority is advised that where a public entity contracts with a third party to fulfill its public duties, and the public entity exercises control over that third party, an agency relationship is created. See Fifty-one Hispanic Residents of Chelsea v. Sch. Comm. of Chelsea, 421 Mass. 598, 607 (1996) (while subject to control of a public entity as a principal for purposes of performing public duties, private university is a public agent). Wherever a record custodian keeps original public records in a location other than the government building, the custodian has a duty to make the public records available in a location convenient to the general public for inspection and copying. In this case, where it appears that POAH and Dellbrook acted as agents on behalf of the Authority, it is unclear whether the records for the Authority’s agents were searched. As such, I find that the Authority must provide additional information detailing its search in order to determine if the Authority has met its burden under G. L. c. 66, § 10(a)(ii) to provide records that are in the possession, custody, or control of the custodian of records at the time of the request. Conclusion Accordingly, the Authority is ordered to provide Ms. Courtney with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten 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. Ms. Courtney may appeal the substantive nature of the Authority’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Karen G. Courtney J. Elliott Koch, Esq.