Brian DeLacey v. Malden, City of (SPR 20202574)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 8, 2021 SPR20/2574 Gregory Lucey City Clerk City of Malden 110 Pleasant Street, 3rd Floor Malden, MA 02148 Dear Mr. Lucey: I have received the petition of Brian DeLacey appealing the nonresponse 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 December 10, 2020 Mr. DeLacey requested “…records related to any received funds not included in the City's adopted FY20 or FY21 budget. Records sought relate to funds received by - or committed to - the Malden Public Schools, whether into accounts controlled by the City of Malden or financial professionals in MPS - from any private, Local, State or Federal source during calendar year 2020 which could reasonably be considered related to pandemic or COVID-19 funding [including] … account statement, program name, receipt or expenditure of funds, and any use terms, restrictions or descriptions pertaining to the use of those funds. If any funding or grant application or communication was provided prior to - or subsequent to - receipt of funds, please include those records and documents as well.” Unsatisfied with the City’s response, Mr. DeLacey petitioned this office and SPR20/2574 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. 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. 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

SPR20/2574 Mr. Greg Lucey Page 2 January 8, 2021 The City’s December 23rd response In its December 23, 2020 response, the City indicated that “the Malden Public School Department’s duty to respond to records requests extends only to records that are in existence and the School Department is under no obligation to create records in response to your request. There are no responsive documents to your request.” Current Appeal In his December 23rd appeal petition, Mr. DeLacey asserted “[i]t appears more than a half-million dollars of ‘received funds’ are well-known to exist and should have records. It's unclear why the School claims otherwise … Another $1.8M+ in funds also looks relevant and related to the original request criteria …” In light of the contentions in Mr. DeLacey’s appeal petition, the City must clarify whether responsive records exist. Conclusion Accordingly, the City is ordered to provide Mr. DeLacey with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within 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: Brian DeLacey