Malden News Network v. Malden, City of (SPR 20240898)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 5, 2024 SPR24/0898 Carol A. Desiderio Records Access Officer City of Malden 215 Pleasant Street Malden, MA 02148 Dear Ms. Desiderio: 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 March 25, 2024, the requestor sought the following records: [A]ny documents or records of the Library Board of Trustees, as received by the Malden City Council, whether these be known as a “Treasurer’s Report” or go by any other name, serving as a “report of their proceedings, and a statement of the condition of the library, its property and functions, the number of books added during the year, with an accurate account of all receipts and expenditures” as is required to be submitted TO THE CITY COUNCIL by the Commonwealth’s Acts & Resolves of 1885, Chapter 146, Section 6. This request seeks responsive records for the time periods FY2013 though FY2023. The City responded on March 25, 2024, indicating that it had previously provided responsive records in response to an earlier request. Unsatisfied with the City’s response, the requestor 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 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

Carol A. Desiderio SPR24/0898 Page 2 April 5, 2024 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. 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. The City’s March 25th Response In its March 25, 2024 response, the City states that “this is the same request as FOIA 2024-0076 made on 2/28/2024. Therefore, please refer to that request in the FOIA Direct system.” In its February 28, 2024 response to the earlier public records request, the City provided a hyperlink “for annual reports” and another hyperlink “for City Budget.” Current Appeal In the appeal petition, the requestor contends that “for the years requested the provided records do not include an accurate account of all receipts and expenditures,” and that “Annual Reports provided at the URL given in response to the request do not include the sought after records.” The requestor further contends that “[d]ocumentation suggests tax preparers have been employed in recent years - suggesting the sought after records clearly must exist, and they certainly would have relied on ‘an accurate account of all receipts and expenditures’ to prepare and submit required filings.” Records in Existence; Possession, Custody, or Control The City is advised that 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). However, under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). Further, in accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). In this case, based on the records available at the hyperlinks provided by the City, and the issues raised in the requestor’s appeal petition, it is unclear whether the City possesses additional records responsive to the request. The City must clarify this.

Carol A. Desiderio SPR24/0898 Page 3 April 5, 2024 Conclusion Accordingly, the City is ordered to provide the requestor with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) 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. Sincerely, Manza Arthur Supervisor of Records cc: Malden News Network