Carol Melle v. Malden, City of (SPR 20201081)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 16, 2020 SPR20/1081 Greg Lucey City Clerk City of Malden 110 Pleasant Street Malden, MA 02148 Dear Mr. Lucey: I have received the petition of Carol Melle, of the Oak Grove Improvement Association, Inc. 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, Ms. Melle requested the following documents related to the City’s Community Preservation Committee: 1. “Friends of Oak Grove Inc. Full CPC FY2020 Application with Date and Timestamp: Substantiate date and time that the Friends of Oak Grove, Inc. (also known as “FOOGI”) submitted their full CPC Application.” 2. “CPC Letter to FOOGI requesting additional information with Date and Timestamp: This letter follows-up with further questions and requests from the CPC for information after the CPC’s initial review of FOOGI’s application in December 2019.” 3. “FOOGI’s UPDATES DUE 3/3/20 with Date and Timestamp: This information is in response to the CPC’s letter of request. (See item #2 above).” 4. “Any and all supporting documentation submitted by FOOGI with Date and Timestamp relevant to their CPC Application not included in the requested documentation above.” Prior appeal The requested records were the subject of a prior appeal. See SPR20/0725 Determination of the Supervisor of Records (Supervisor) (May 18, 2020). The City provided a response to Ms. Melle’s request on May 18th. In its response, the City asserts, “[p]lease find attached document 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, City Clerk SPR20/1081 Page 2 July 16, 2020 with regards to PRR 2020-0070, SPR20/0725. The CPC is asking for specifics for Item #4 (supporting documentation submitted by FOOGI with date and time stamp relevant to their CPC Application not included in the requested documentation above.” Whereas, the basis for appeal SPR20/0725 was due to the City’s lack of response to Ms. Melle’s request, I closed SPR20/0725 upon the City’s May 18th response. 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). Current appeal After receipt of records responsive to her request, on July 2, 2020, Ms. Melle petitioned the Supervisor again, and the current appeal was opened. In her July 2nd petition, Ms. Melle indicates that the records she received does not appear to be authentic. She states as to the content of the information sent, “…indicates nothing, such as a City Logo; Letterhead; Date; Time; Subject and Email Header [i]nformation to confirm the legitimacy, authentication or official status of this information.” She also informed this office that the documents in the form of an email and/or a hard copy letter appear to be a “cut and paste” series of paragraphs. In her July 2nd petition to the Supervisor, she explains the following issues with the records that the City provided, specifically: 1. Ms. Melle requested the full application for the Community Preservation Act Funding with the application date and time stamped by the city; however, she explains that she did not receive this; nor, did she receive a copy of the email from FOOGI to CPC with the email header containing the To, From, Date, Time and Subject Fields, along with the attached application. Ms. Melle seeks to verify whether the application was received on 9/25/2019. It is my understanding that the City provided Ms. Melle with a link to the City’s website; however, Ms. Melle questions whether the copy of the application on the City’s website is indeed the same application that was received on 9/25/2019, as the copy on the website contains no date or time stamp of receipt.

Greg Lucey, City Clerk SPR20/1081 Page 3 July 16, 2020 2. Ms. Melle indicates that she did not receive a copy of an email and/or letter from CPC to FOOGI with date and time stamp containing a list of the additional questions to be answered by FOOGI. She asserts “[i]n the CPC’s December 9, 2019 meeting, the CPC motioned to request, put in writing and send to FOOGI a list of additional questions to be answered and materials to be supplied.” Ms. Melle indicates that the City did not provide her with an email or letter sent by the CPC to FOOGI. 3. With regard to FOOGI’s updates due on 3/3/2020 with date and time stamp of receipt from the CPC was not received by Ms. Melle. The City provided a two-page document with the heading: “RE: FY 2020 CPC Application;” however, the City did not stamp the document with the date and time received. Ms. Melle questions who generated the document, and as the document states that the application was signed, she asks: “who responded and when? When was the application signed” And by whom? Where is the signed application? When was it received? What is the date?” Ms. Melle states that as of July 2nd, the date of her petition to the Supervisor, the City has not provided the signed application. While a public employee is not required to answer questions, do research or create documents in response to questions, I find it is unclear whether the City has additional documents responsive to this request. The duty to comply with requests for information extends only to those records that exist and are in the custody of the custodian of records at the time of the request. See G. L. c. 4, § 7(26). Furthermore, I encourage the parties to communicate and work together to resolve the outstanding issues involved with Ms. Melle’s records request. Conclusion Accordingly, the City is ordered to provide Ms. Melle with a response to her 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: Carol Melle