Amy Friedman v. Malden City Clerk's Office (SPR 20200545)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 31, 2020 SPR20/0545 Greg Lucy City Clerk City of Malden 110 Pleasant Street, First Floor Malden, MA 02148 Dear Mr. Lucey: I have received the petition of Bruce Friedman appealing the response of the City of Malden (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Friedman requested copies of “. . . any billing statements, invoices, purchase orders, contracts, communications which are not privileged and any other documentation regarding the law firm Murphy, Hesse, Toomey & Lehane, LLP, . . . and/or the attorney Alisia St. Florian, Esq. from 2010 through the date you answer [] this request.” The City responded on March 16, 2020, denying access to responsive records pursuant to 950 C.M.R. 32.08(1)-(2). Unsatisfied with the City’s response, Mr. Friedman petitioned this office and this appeal, SPR20/0545, was opened as a result. Petitions to the Supervisor of Records Mr. Friedman is reminded that when appealing to the Supervisor of Records, the requestor “shall provide to the Supervisor complete copies of all correspondence associated with the petition, including: a complete copy of the letter by which the request was made, including in the case of electronic communications all header information indicating time, date, subject, sender and recipient email addresses . . .” 950 C.M.R. 32.08(1)(g). 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 town of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). 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

Greg Lucey SPR20/0545 Page 2 March 31, 2020 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. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of 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 City’s March 16th response In its March 16, 2020 response, the City states that after its review of Mr. Friedman’s request, it is denying access to the responsive records, because “[Mr. Friedman] and [his] spouse are presently involved in pending litigation against the Malden School Department before the Bureau of Special Education Appeals, and the School Department is represented by the same Attorney Alisia St. Florian and her law firm noted in [Mr. Friedman’s] request.” The City further states that “. . . the Malden School Department has submitted a motion for a protective order relative to the state of the parties’ discovery in the case, and that motion remains pending. In light of the ongoing litigation between [Mr. Friedman] and the Malden School Department, [the City] respectfully declines [Mr. Friedman’s] request. See 950 CMR 32.08(1-2).” The City also states that it “. . . denies [Mr. Friedman’s] request subject to, without waiving, and expressly reserving any and all other defenses that [the City] can assert in reply to [his] request; [the City’s] defenses include, without limitation, the attorney-client privilege, the deliberative process exemption, and the overbreadth of [his] request evidenced by its ten-year span and its specification for all documents pertaining to Attorney St. Florian and her law firm. Indeed, the unreasonable scope of [Mr. Friedman’s] request appears to include materials that are not within the possession, custody or control of the City.” Based on the City’s response, it is unclear what type of records, categories of records or portions of records in its possession that it intends to withhold from disclosure. To deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § 10(b)(iv); see also 950 C.M.R. 32.06(3)(c)(4). Therefore, I find the City must identify the type of record(s) it has in its possession that it withheld from disclosure. Further, where the City claims that it withheld the records from disclosure because of a pending litigation, I find the City must provide additional information explaining how the requested records are related to the pending litigation and/or “are the subjects of a disputes in active litigation.” See 950 C.M.R. 32.08(2)(b)(1).

Greg Lucey SPR20/0545 Page 3 March 31, 2020 Conclusion Accordingly, the City is ordered to provide Mr. Friedman with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations as soon as practicable. 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, Rebecca S. Murray Supervisor of Records cc: Bruce Friedman