Brian DeLacey v. Malden, City of - Office of the City Solicitor (SPR 20160012)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords February 5, 2016 SPR16/012 Ms. Kathryn M. Fallon, Esq. City Solicitor City of Malden 200 Pleasant Street, Room 613 Malden, MA 02148 Dear Attorney Fallon: I have received the petition of Brian DeLacey appealing the response of the City of Malden (City) to a November 23, 2015 request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Mr. DeLacey requested three categories of records. Timeliness of response; failure to advise requester of administrative remedy The City initially responded in an email dated December 16, 2015. It is important to note that the City's December 16 response was not made in compliance with the timeliness requirements of the Public Records Law and its Access Regulations (Regulations). The response is dated twenty-three (23) days after the request. G. L. c. 4, § 7 (26); 950 C.M.R. 32 et seq. A record custodian must comply with a public records request as soon as is practicable, without unreasonable delay, and always within ten (10) calendar days. G. L. c. 66, § 10(a); 950 C.M.R. 32.05(2). The City is advised that all responses to requests for public records must be made in compliance with the timeliness requirement of the Regulations. In addition, the City's response failed to inform Mr. DeLacey of the administrative remedy to a denial of access. The Regulations state that a custodian must advise the person denied access to public records of his or her administrative remedies. 950 C.M.R. 32.08(1). Request 1 The City's December 16 response addressed all three categories of requested records. With respect to Mr. DeLacey's first request for "[c]orrespondence from Alan Macdonald to the Honorable John Matheson, dated September 22, 2015 and any subsequent correspondence related to this" (Request 1), you stated "there are no documents responsive to your request." OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Ms. Kathryn M. Fallon, Esq. SPR16/012 Page 2 February 5, 2016 A record holder's duty to comply with requests for information extends only to those records which exist and are in his custody. See G. L. c. 4, § 7 (26). There is no obligation to create a record in response to a public records request. G. L. c. 66, § 1 O(a); 32 Op. Att'y Gen. 157, 165 (May 18, 1977). Accordingly, I will consider the portion ofthe appeal associated with Request 1 to be closed. Request 2 and Request 3 Mr. DeLacey's second request was for "[c]orrespondence (in hard copy or digital format) between Councilor Matheson and the appraiser hired in 2015 to conduct an appraisal of the 'Malden Hospital Site"' (Request 2). Mr. DeLacey's third request was for a copy of the "aforementioned appraisal" if completed, or the projected completion date (Request 3). In your December 16 response, you state "with respect to the specific communication mentioned and appraisal, these documents are exempt from disclosure based upon attorney/client communication and in consideration of review in the context of executive session, for purposes of consideration of eminent domain proceeding ...." You also state "the minutes of that session have not yet been deemed public by the Council." Subsequent to the opening of this appeal, on January 26, 2016 the City provided Mr. DeL acey with another written response concerning Request 2 and Request 3. In this response, the City indicates the appraisal was discussed in executive session and that the appraisal and "communications relating thereto" are being withheld because "the privilege attached to this matter remains intact." The City also cites Exemption (i) of the Public Records Law and the attorney-client privilege in support of its position to withhold records responsive to Request 2 and Request 3. Open Meeting Law Based on the City's responses, it is unclear whether it is withholding records under the Public Records Law or the Open Meeting Law. Given that an interpretation of the Open Meeting Law falls within the authority of the Office of the Attorney General (AGO) and not this office, I decline to provide a determination as to the public status of records responsive to Request 2 and Request 3 at this time. See G. L. c. 30A, § 23. Conclusion Due to the ambiguity discussed above, I find the City has failed to meet its burden to respond to Mr. DeLacey's Request 2 and Request 3 under the Public Records Law. Accordingly, the City is hereby ordered to provide Mr. DeLacey with a revised response, within ten (1 0) days, that specifically explains the basis of its withholding of records responsive to Request 2 and Request 3. If the City intends to withhold records under the Public Records Law, it must

Ms. Kathryn M. Fallon, Esq. SPR16/012 Page 3 February 5, 2016 explain, with specificity, how a particular exemption applies to each record. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. To assist the City in responding to requests for public records I have enclosed a copy of our publication, A Guide to the Massachusetts Public Records Law. This document is also available on the Internet, free of charge, at http://www.sec.state.ma.us/pre/prepdf/guide.pdf. Attorneys on my staff are available during regular business hours to answer general questions regarding the Public Records Law. In addition, members of my staff will visit a records custodian in person to conduct training workshops on the Public Records Law upon request. Please contact my office directly at the telephone number provided in this determination for further information. The City and/or Mr. DeLacey may wish to contact the 0 if either have questions regarding the applicability of the Open Meeting Law. I have c ied the Director of the AGO's Division of Open Government on this written determinatl Enclosure cc: Mr. Brian DeLacey Ms. Amy Nable, Esq., Division of Open Government