Amy Friedman v. Malden City Clerk's Office (SPR 20200930)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 24, 2020 SPR20/0930 Greg Lucey 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: “[p]lease provide all [Public Records Law] requests made upon the [City] for the calendar year 2019, and the City’s responses including the date and time requested, and the date and time responded.” On June 10, 2020, the City responded, “[t]here were 285 Public Records [r]equests in 2019. Attached is a fee estimate to process your request.” As a result of the response, Mr. Friedman petitioned the Supervisor and this appeal was opened. In his petition, Mr. Friedman indicates, “…[t]here was NO estimate attached…[t]he request was for electronic delivery of records. The requestor does not want paper copies, the requestor wants the documentation in the form which it exists.” 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 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 SPR20/0930 Page 2 June 24, 2020 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 for the appeal Mr. Friedman bases his appeal on the fact that the City indicated that a fee estimate was included with the response to his May 28, 2020 request; however, the estimate was not attached. In addition, Mr. Friedman seeks to receive the records through electronic delivery. The records access officer must, to the extent feasible, provide the public record in the requestor’s preferred format or, in the absence of a preferred format, in a searchable, machine readable format. See G. L. c. 66, § 6A(d); see also 950 C.M.R. 32.07(1)(a-d). It is unclear whether the City intends to provide the records through electronic delivery, such as through email communication, and whether the records are retained in paper or native electronic format. Mr. Friedman asks for the documentation in the form in which it exists. The City must clarify this issue. It is my understanding that the City intends to provide the fee estimate it prepared for its June 10th response. Conclusion Accordingly, the City is ordered to provide Mr. Friedman with a response to the request, 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