Malden News Network v. Malden, City of (SPR 20231546)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 20, 2023 SPR23/1546 Greg Lucey Records Access Officer Clerk Department City of Malden 215 Pleasant Street Malden, MA 02148 Dear Mr. Lucey: I have received the petition of Malden News Network appealing the response of the City of Malden (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 22, 2023, Malden News Network requested twelve categories of records relating to a “job announcement ... for a Constituent Services / Social Media specialist,” including: 6. All related communications for this June 22nd job announcement (e.g. resumes, applications, emails, text etc.). The City responded on June 30, 2023, providing a written response for each item of the request, and for Part 6 of the request, indicating “not subject to disclosure.” Unsatisfied with the City’s response, Malden News Network 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 agency or municipality 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. Att’y for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of 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 SPR23/1546 Page 2 July 20, 2023 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. Current Appeal In the appeal petition, Malden News Network states that “the specific subpart of the response to be appealed is item 6.” Malden News Network contends that “the City refused to provide records under an umbrella’d declination” and further contends that “there are four record types in this request, and all appear to be unquestionably public records: resumes, applications, emails and text.” The City’s June 30th Response In its June 30, 2023 response, under Part 6 of the request, the City indicates “not subject to disclosure.” Burden of Specificity Under the Public Records Law, the burden shall be on the custodian to establish the applicability of an exemption to withhold or redact records. Based on the City’s response, it is unclear which exemption the City is citing in order to withhold the requested records. Additionally, it is unclear what records the City intends to withhold. The City must identify the records, categories of records, or portions of records it intends to withhold, and explain with specificity the applicability of any exemptions of the Public Records Law. See G. L. c. 66, § 10(b)(iv) (a 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”). See also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511; Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Conclusion Accordingly, the City is ordered to provide Malden News Network with a response to the 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 the response to this office at pre@sec.state.ma.us.

Greg Lucey SPR23/1546 Page 3 July 20, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Malden News Network