Colman Herman v. Malden City Clerk's Office (SPR 20200893)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 19, 2020 SPR20/0893 Greg Lucey, City Clerk City of Malden – Clerk’s Office 110 Pleasant Street Malden, MA 02148 Dear Mr. Lucey: I have received the petition of Colman Herman 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, on June 3, 2020, Mr. Herman requested the following records relating to an identified individual: [H]ard copies and electronic copies of any and all communications related to your hosting your daughter’s birthday party in the parking of a Malden business. Communications include, but are not limited to, emails, letters, memoranda, faxes, and notes. Please be aware that if any related communications were done through personal email accounts, text messaging, etc., these vehicles must be searched for responsive public records. You may exclude invitations sent to guests and their responses. On June 4, 2020, the City provided a response indicating it does not possesses responsive records. Unsatisfied with the City’s response, Mr. Herman petitioned this office and this appeal, SPR20/0893, 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, § 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 SPR20/0893 Page 2 June 19, 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 June 4th response In its June 4, 2020 response, the City states that it “. . . ha[s] completed the work in reference to your request as referenced above. . . . There are no documents related to your Public Records Request . . .” In his appeal petition, Mr. Herman states the following: 2) On June 4, 2020, Malden Town Clerk and Records Access Officer Greg Lucey responded for Councilor Sica, claiming ‘There are no documents related to your Public Records Request #2020-0111.’ 3) Despite what Mr. Lucey claims, I have identified one communication that Ms. Sica and Mr. Lucey failed to produce. It is a Facebook post by Councilor Sica, which is found at this link. . . . 4) It is hard to imagine that there are no[] other responsive records given the press coverage of the party put on by Councilor Sica. For example: a) Malden Police break up parking lot birthday party after concerns over lack of social distancing . . . b) Malden City Council president apologizes for parking lot birthday bash . . . c) Malden City Council President Jadeane Sica apologizes for hosting daughter’s birthday party amid coronavirus restrictions as some call for her resignation . . . 6) Mr. Lucey and Councilor Sica did not conduct a thorough search for the responsive records. It is not clear, for example, whether they even searched Councilor Sica’s records. It is also not clear whether they searched Councilor Sica’s personal email accounts, text messaging, etc., which I specified in my public records request. . . . In light of Mr. Herman’s claims, I find the City must explain whether it possesses any records responsive to the request. 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, § 10(a)(ii). Also, in accordance with the Public Records

Greg Lucey SPR20/0893 Page 3 June 19, 2020 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). Conclusion Accordingly, the City is ordered to provide Mr. Herman 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: Colman Herman