Amy Friedman v. Malden City Clerk's Office (SPR 20201798)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 8, 2020 SPR20/1798 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, on September 3, 2020, Mr. Freidman requested “. . . all documentation regarding and resulting from the special education audit of services delivered and not delivered to all special education students in 2019-2020 as so ordered by the Malden School Committee at the regular meeting of June 22, 2020 which was due September 1, 2020. This request includes but is not limited to the audit itself, minutes, emails, videos, recordings and documents of any nature.” Previous appeal The requested records were the subject of a previous appeal. See SPR20/1749 Determination of the Supervisor of Records (September 24, 2020). SPR20/1749 was closed after this office learned that the City had provided Mr. Friedman with a response on September 21, 2020. Unsatisfied with the Department’s response, Mr. Friedman petitioned this office and this appeal, SPR20/1798, 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). 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. 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 SPR20/1798 Page 2 October 8, 2020 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 September 21st response In its September 21, 2020 response, the City states “[t]he special education audit of services delivered and not delivered to all special education students in 2019‐2020 has not been conducted yet.” In his appeal petition, Mr. Friedman states “1. The City acknowledges the existence of the records in its response, however provides NO records. 2. The requester is aware of many records responsive to the request, none of which were provided. . . .” Based on the City’s response, in conjunction with Mr. Friedman’s claim, I find the City must confirm if it possesses 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). To the extent that the requested records exist, I find the City must provide them in a manner consistent with the Public Records Law or identify an exemption that applies to withhold the records from disclosure. G. L. c. 66, § 10(b). 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 within ten (10) business days. 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