Brian DeLacey v. Malden, City of (SPR 20190643)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords April 5, 2019 SPR19/0643 Lisa Cagno Department RAO Council Office Department City of Malden 110 Pleasant Street Malden, MA 02148 Dear Ms. Cagno: I have received the petition from Brian DeLacey appealing the response from the City of Malden (City) regarding a request for public records. G. L. c. 66, § 1 OA; see also 950 C.M.R. 32.08(1). Specifically, on March 7, 2019, Mr. DeLacey requested "the slide presentation presented by Councilor John Matheson at public meeting held on June 27, 2018." The City responded on March 22, 2019. Unsatisfied with the City's response, Mr. DeLacey appealed to this office and SPR19/0643 was opened as a result. Appeal Under the Public Records Law and the Access Regulations (Regulations) all requests for public records must be met with a response within ten business days of receipt of the request. G. L. c. 66, § lO(a)-(b). The response may contain, among other things, an offer to provide records, a fee estimate for provision of the records, or a denial. G. L. c. 66, § lO(b). All records custodians must comply with both the Public Records Law and the Regulations with respect to the timeliness of response. 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 ofrecords at the time of the request. See G. L. c. 66, § lO(a)(ii), (b)(ii). Also, the duty to comply with requests for records extends to identifying the agency or municipality that may be in possession, custody, or control of the public record sought, if known. See G. L. c. 66, § lO(b)(iii). 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, § lO(b)(iv) (written response must "identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based ... "); 950 C.M.R. 32.06(3); see 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

Lisa Cagno SPR19/0643 Pg. 2 April 5, 2019 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). It is unclear if the City possesses the slides requested by Mr. DeLacey. See G. L. c. 66, § 10(a )(ii), (b) (ii), (iii). 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 ofrecords at the time of the request. See G. L. c. 66, § 10(a )(ii), (b )(ii). Please note, the duty to comply with requests for records extends to identifying the agency or municipality that may be in possession, custody, or control of the public record sought, if known. See G. L. c. 66, § 1 O(b) (iii). If the records are within the City's possession and they intend to withhold the documents an exemption must be provided as stated above. See G. L. c. 66, § 1O (b )(iv) ( custodian has the burden of establishing the applicability of an exemption). If the City is not in possession, they have a duty to identify to Mr. DeLacey the agency or municipality that may be in possession, custody, or control of the public records sought. See G. L. c. 66, § lO(b) (iii). Conclusion Accordingly, the City is ordered to review the request made by Mr. DeLacey and provide a response to Mr. DeLacey, made in accordance with the Public Records Law, its Access Regulations and this order within ten business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy o£this response to this office at pre@sec.state.ma.us. Mr. DeLacey may appeal the substantive nature of the City's response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Brian DeLacey