John Saia v. Malden, City of (SPR 20211048)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 5, 2021 SPR21/1048 Gregory Lucey City Clerk City of Malden 215 Pleasant Street Malden, MA 02148 Dear Mr. Lucey: I have received the petition of John Saia 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 April 2, 2021, during an email discussion about the City’s contract for solid waste collection, Mr. Saia submitted “a public record request for whatever sources [the Mayor] consulted to override the language of the actual contract.” The City responded on the same day, stating that the “request is received.” Unsatisfied with the City’s response, Mr. Saia appealed, and this case 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. 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. 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

Gregory Lucey SPR21/1048 Page 2 May 5, 2021 Current Appeal In Mr. Saia’s appeal petition, he states that he “formally requested public records for any sources external to the contract that [the Mayor] had ‘looked into,’ and [has] yet to receive any documents. Again, [the Mayor’s] ‘looking into it’ suggests that external records do exist.” Records in Existence 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). In this case, it is not clear whether the City possesses records responsive to Mr. Saia’s request. The City must clarify this. Conclusion Accordingly, the City is ordered to provide Mr. Saia with a response to his request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten 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: John Saia