Brian DeLacey v. Malden, City of - Office of the City Solicitor (SPR 20191369)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 25, 2019 SPR19/1369 Thomas E. Brennan City of Malden 110 Pleasant Street, Third Floor Malden, MA 02148 Dear Mr. Brennan: I have received the petition of Brian DeLacey appealing the response of the City of Malden (City) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1 ). Specifically, Mr. DeLacey requested "the slide presentation presented by Councilor John Matheson at public meeting held on June 27, 2018." Previous appeals This request was subject of previous appeals. See SPR 19/0643 Determination of the Supervisor of Records (December 11, 2018); SPR 19/0807 Determination of the Supervisor of Records (May 2, 2019); SPR19/1152 Determination of the Supervisor of Records (June 21, 2019). I closed SPRl 9/1152 by ordering the City to provide Mr. DeLacey with a response to his request; specifically explaining how the slideshow is not within the City's possession, custody, or control and falling under the statutory definition of a public record. In a letter dated June 28, 2019, the City provided Mr. DeLacey a response. Unsatisfied with this response, Mr. DeLacey · petitioned this office and this appeal, SPR19/1369, 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, § lOA(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 town 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, § lO(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 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

Thomas E. Brennan SPR19/1369 Page 2 foly 25, 2019 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. Current appeal In its June 28th response, the City indicates that" ... the slide presentation was posted on www.maldenhistory,org" and indicates that it sent Mr. DeLacey a copy of the slide presentation. The City further indicates that "[t]hese are the only documents that this office has in its possession, custody or control relating to the slide presentation ... [the City was] never given an original copy and have not been give one to date." Existence ofr esponsive 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, § lO(a)(ii). 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). The definition of a public record 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 an agency or municipality. See G. L. c. 4, § 7(26). In my June 21st determination, I indicated that whereas it appears that Councilor Matheson created the slideshow in his official capacity, it is unclear how the slideshow is not within the City's possession, custody, or control and falling under the statutory definition of a public record. Despite the City's June 28th response, these issues remain unclear. The City must clarify this matter. Order Accordingly, the City is ordered to provide Mr. DeLacey 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 this response to this office at pre@sec.state.ma.us. Sincerely, ~r~ Supervisor of Records cc: Brian DeLacey