Ryan, Jillian v. Malden, City of (SPR 20140102)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords March 24, 2014 SPR14/102 Mr. Charles Ranaghan Controller City ofMalden 200 Pleasant Street, Room 313 Malden, MA 02148 Dear Mr. Ranaghan: I have received a petition from lillian Ryan, Esq. of Pyle Rome Ehrenberg, P.C. appealing the City of Malden's (City) response to her January 15, 2014 request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Attorney Ryan represents the Malden Firefighters Union Local 902 (Union), and previously requested the records pursuant to G. L. c. 150E (the collective bargaining laws) on September 19,2013, December 5, 2013, January 8, 2014 and January 13, 2014. This Office has no authority to rule on issues concerning G. L. c. 150E, therefore my detennination rests on Attorney Ryan's January 2014 requests pursuant to the Public Records Law. Specifically, Attorney Ryan requested copies of: 1. Collective bargaining agreements (CBAs) and memorandums of agreements (MOAs) in effect from 2011 to the present for all the City bargaining units other than the Fire Department, along with MOAs relating to all CBAs currently in effect, 2. Employment agreements in effect for the City's Police Chief and Fire Chief, along with copies of the City's wage plan or employment agreements in effect for City Hall employees and all other non-represented employees, 3. A list of grade changes/increases granted to City Hall employees, represented or non represented by a union since January 1, 2012 through fiscal year 2013,and 4. A list of2013 yearly earnings for employees of the City's police department broken down by name, rank, appointment/seniority date, total earnings, overtime earnings and educational incentive. On January 24, 2014, you informed Attorney Ryan that the City Clerk is the keeper of the records concerning the CBAs, MOAs and employment agreements for the Police Chief and Fire Chief, and that she could obtain those records through the City Clerk. You also inforn1ed OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Mr. Charles Ranaghan SPR14/102 Page Two March 24, 2014 Attorney Ryan that the City has no records concerning her requests for: • A formalized wage plan, employment agreements for City Hall employees, • A list of grade changes/increases granted to City Hall employees, and • A list of 2013 yearly earnings for employees of the City's Police Department (by name, ·rank, appointment/seniority date, total earnings, overtime earnings and educational incentive). Attorney Ryan contacted you on January 28, 2014 after receiving your January 24111 response regarding her request for the 2013 yearly earnings for employees of the City's Police Department. Attorney Ryan questioned the veracity of your response to her request for payroll information of police department employees. I find that while the City may not have a list with the specific information that Attorney Ryan requested, it must possess payroll information and that is a public record. Therefore, Attorney Ryan should have been provided with whatever responsive records exist. Moreover, Attorney Ryan re-phrased her request for this information in her January 28 letter, and seeks documentation: • Showing the total 2013 yearly earnmgs of each employee of the police department, • Showing how much overtime was paid to each employee of the police department during 2013, • Showing how much educational incentive was paid to each employee of the police department during 2013, and • Showing the appointment date for each current employee of the police department. Given that the ability to inspect the records of government is fundamental to our democracy, there is a presumption that all governmental records are public records. Disclosure of governmental records is favored by the presumption that the record sought is public. G. L. c. 66, § 10(c); 950 C.M.R. 32.08(4). See The Harvard Crimson, Inc. v. President & Fellows of Harvard College; Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 436 (1983). While the City responded to the public records requests within ten (10) days, I find that the City failed to meet its burden under the Public Records Law by providing a detailed response on January 24, 2014. A custodian ofrecords must use his superior knowledge of the records to identify those records that are responsive to the request, conduct a quick search if necessary in

Mr. Charles Ranaghan SPR14/102 Page Three March 24, 2014 order to identify responsive records, and send a detailed, written response. To date, Attorney Ryan has not received all the records responsive to her requests, and therefore I find that the City has not met its burden under the Public Records Law. Fees under the Public Records Law Your January 24th letter to Attorney Ryan also indicates that she could obtain copies of some of the requested records through the City Clerk, and that copies would cost twenty-five ($.25) cents per page. Please be advised that a custodian of records may not institute a policy or procedure concerning public records that is adverse to the provisions of the Public Records Law and its Regulations. See G. L. c. 66, § 10; 950 CMR 32.00. A custodian of records may charge fees for complying with a public records request, however those fees must be reasonable and in compliance with the Public Records Law Regulations (Regulations). Please take note of Section 32.06(1)(a) in Chapter 950 ofthe Code of Massachusetts Regulations, which states that copies of public records are twenty cents ($.20) per page, not twenty-five ($.25) cents for copies. 950 CMR 32.06 (fees for public records). Accordingly, I find that the City has failed to meet its burden under the Public Records Law, and that the records Attorney Ryan requested are public records subject to any redactions. The City is hereby ordered to review the responsive records, redact where necessary, claiming any exemptions with specificity, and provide Attorney Ryan with the records within ten (10) days. If the City is planning to charge Attorney Ryan for the cost of providing the records, she must receive a written, good faith estimate. Once Attorney Ryan pays the estimate, she must be provided with the records. Failure to comply with this determination may result in Attorney Ryan filing a complaint for enforcement in Superior Court. This appeal is closed. Shawn A. Williams Supervisor of Records cc: Ms. Jillian Ryan, Esq.