Public Schools Data Exchanger v. Malden, City of (SPR 20240914)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 8, 2024 SPR24/0914 Carol A. Desiderio Records Access Officer City of Malden 215 Pleasant Street Malden, MA 02148 Dear Ms. Desiderio: I have received the petition of Public Schools Data Exchanger (“requestor”) 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 5, 2024, the requestor sought the following: All invoices paid by the City of Malden to any legal service provider for the following court case: Malden v. Supervisor of Public Records, et. Al (2181CV01458)[.] The City responded on March 20, 2024, indicating that a response was provided in response to a separate request. Unsatisfied with the City’s response, the requestor appealed, and this case was opened as a result. Subsequent to the opening of this appeal, in a letter to this office and the requestor on April 1, 2024, the City provided a supplemental response. 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. 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 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 SPR24/0914 Page 2 April 8, 2024 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, the requestor contends that “we have not received a response from the City of Malden within 10 business days as required under law.” The requestor further contends that: This request is for the City of Malden’s records, specifically all invoices paid by the City of Malden, the Controller’s Office, not the Malden Public Schools. As per the public records law of the Commonwealth of Massachusetts if the public records do not exist, they are not obliged to create such a record, and were invited to provide a written statement to that effect as can be seen in our request. The City’s Responses In its March 20, 2024 response, the City refers to a March 19, 2024 fee estimate provided by the Malden Public Schools, and states that the Malden Public Schools RAO “responded on behalf of the City of Malden.... The School Department is a part of the City of Malden and its response is for the City of Malden.” In its April 1, 2024 supplemental response, the City reiterates that the School “responded on behalf of the City and provided a response to both requests.” Possession, Custody, or Control 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 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, City has used its superior knowledge of the records in order to assist the requestor, and forwarded the request to the School, and the School in turn provided a fee estimate to the requestor on March 19, 2024. If the requestor is unsatisfied with the fee estimate provided by the School, he may appeal the School’s fee estimate within 90 days. See 950 C.M.R. 32.08(1).

Carol A. Desiderio SPR24/0914 Page 3 April 8, 2024 Conclusion Accordingly, I will consider this administrative appeal closed. If the requestor is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, §§ 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Public Schools Data Exchanger