Brian DeLacey v. Malden, City of (SPR 20210369)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 1, 2021 SPR21/0369 Mr. Greg Lucey City of Malden Clerk’s Office 110 Pleasant Street Malden, MA 02148 Dear Mr. Lucey: I have received the petition of Brian DeLacey 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). On January 26, 2021, Mr. DeLacey requested: 1. The City’s current charter, which is now in effect (with an effective date); 2. The immediately preceding City charter, prior to the current one (with an effective date); 3. All certificates recording the City Charter or Charter amendments – these certificates would be records signed by the City or town clerk and recorded in the records of the City or town and deposited among its archives as described by Article LXXXIX [see Note 1]; 4. The most recent public body minutes describing adopted charter amendments; 5. The most recent public body minutes describing proposed charter amendments; and, 6. The most recent public body minutes describing any current or past charter commission. Basis of Mr. DeLacey’s appeal – Request Number 1 The City did not provide Mr. DeLacey with his Request Number 1 for a copy of the City’s current charter; the City charter that is now in effect. In his February 12, 2021 petition to the Supervisor, Mr. DeLacey assets, “the City is known to have multiple versions of a ‘consolidated’ charter published to the public. Thus, one or both of these could be easily provided. Neither of these publicly discussed records appears to have been included in the [C]ity’s 88-document reply. Since at least one of these documents was unknown to some current members of the City Council until after it was posted, that record appears inaccurate in stating the ‘City Council approve[d] the following consolidation of the [C]ity charter.’” 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 SPR21/0369 Page 2 March 1, 2021 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). 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. Burden of specificity Pursuant to the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. G. L. c. 66, § 10(b)(iv); see also Globe Newspaper ----------------- Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The City did not identify what records it has in its possession that are responsive to Mr. DeLacey’s Request Number 1, and why the records cannot be provided. To deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3)(c)(4). Therefore, the City must identify what records it has in its possession that are responsive to Mr. DeLacey’s request which the City has withheld. Conclusion Accordingly, the City is ordered to provide Mr. DeLacey with a response to his Request Number 1, 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. Mr. DeLacey may appeal the substantive nature of the City’s response within 90 calendar days. See 950 C.M.R. 32.08(1).

Greg Lucey SPR21/0369 Page 3 March 1, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: Brian DeLacey