Amy Friedman v. Malden, City of (SPR 20211512)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 28, 2021 SPR21/1512 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 his requests for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Mr. Friedman submitted public records requests dated March 11, 2021, seeking various email correspondences between specified City employees during a certain time period. Previous Appeal This request was the subject of a previous appeal. See SPR21/0830 (April 14, 2021). The City provided a response on June 14, 2021. Unsatisfied with the City’s response, Mr. Friedman petitioned this office and SPR21/1512 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

Greg Lucey SPR21/1512 Page 2 June 28, 2021 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 June 14th & 21st responses In its June 14th response, the City provided records responsive to Mr. Freidman’s request. In his appeal to this office on June 14, 2021, Mr. Freidman stated, “[n]o emails were provided past May 20, 2021. Today is June 14 and the request specifically sought all emails ‘For the time period January 1, 2021 through the date you respond with the responsive documents.’ The City has failed to provide any emails between May 21 and June 14, 2021. The requestor has knowledge that responsive emails exist in this time period.” The City provided a supplemental response on June 21, 2021. The City noted, “by failing to provide a specific end date, Mr. Friedman’s request is formulated in a manner that does not reasonably describe the public record sought.” The City went on to explain “the records created between May 21 and June 14 are clearly public records, and, were Mr. Friedman to submit a supplemental request involving that specific date range, the city would willingly provide them. However, they are not records that Mr. Friedman would not have reasonably expected to obtain when his request was filed in mid-March. Therefore, the city believes that, given the indefinite nature of Mr. Friedman’s request, the records provided represent a reasonable response to the request and respectfully asks that the Supervisor uphold this position.” Prospective requests Please be advised that the Public Records Law does not require a custodian to honor a prospective 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. 66, § 10(a)(ii). Conclusion Where the City has provided all records in its possession to responsive to the March 11th request, I will now consider this administrative appeal closed. Sincerely, Rebecca S. Murray Supervisor of Records cc: Bruce Friedman Karen Anderson