Amy Friedman v. Malden City Clerk's Office (SPR 20200739)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 15, 2020 SPR20/0739 Greg Lucey City Clerk City of Malden 110 Pleasant Street 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). On March 1, 2020, Mr. Friedman requested: “any traffic studies, traffic plans, engineering documents, vehicle counts, meetings, minutes, communications including email communications pertaining to streets in Malden, specifically: (1) Elm Street from Pleasant Street to Dexter Street; (2) Elm Street from Highland Avenue to Dexter Street; (3) Dexter Street from Elm Street to Maple Street, and (4) Pleasant Street from Highland Avenue to Pearl Street.” Prior appeal The requested records were the subject of a prior appeal due to Mr. Friedman not receiving a response. See SPR20/0544 Determination of the Supervisor of Records (Supervisor) (March 31, 2020). The City provided Mr. Friedman with a traffic study; however, Mr. Friedman contends that he did not receive all the records responsive to his request. As a result, on May 6, 2020, Mr. Friedman petitioned the Supervisor of Records (Supervisor), and the current appeal was opened. 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 SPR20/0739 Page 2 May 15, 2020 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). 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) (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 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). Basis of the current appeal Mr. Friedman indicates that the City did not provide all the records responsive to his March 1st request. He states in his May 6th petition to the Supervisor, “[t]he requestor has personal email communications with the City representing the fact that the [City] does in fact in its possession have at least two emails which are responsive to the [request].” Further, Mr. Friedman asserts that the City must have emails and other records responsive to his request. The City must use its knowledge of the records to facilitate the provision of any additional responsive records. Under the Public Records Law, 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 at the time of the request. See G. L. c. 66, § 10(a)(ii). I encourage the parties to continue to communicate to facilitate the provision of any additional responsive records, and to resolve any outstanding issues pertaining to Mr. Friedman’s request for records. If any additional issues remain, Mr. Friedman may appeal further. Sincerely, Rebecca S. Murray Supervisor of Records cc: Bruce Friedman