Public Schools Data Exchanger v. Malden, City of - Office of the City Clerk (SPR 20241074)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 25, 2024 SPR24/1074 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 April 8, 2024, the requestor sought the following records: All invoices paid by the City of Malden (Specifically excluding any records possessed by the Malden Public Schools and Specifically ONLY including records only in the possession and under the control of the City of Malden Controller) to any legal service provider for the following court case: - Malden v. Supervisor of Public Records, et. Al (2181CV01458) The City responded on April 8, 2024, indicating that a response was provided in response to an earlier duplicate 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 16, 2024, the City provided a supplemental response. In an email to this office and the City on April 16, 2024, the requestor further objected to the City’s 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). 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 SPR24/1074 Page 2 April 25, 2024 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. Current Appeal In the appeal petition, the requestor contends the following: THIS IS NOT A DUPLICATE REQUEST: The specific request of April 8, 2024 is clearly a modified request, it is seeking only the records in the possession of the City of Malden’s Controller, and was sent to him directly, further it specifically excludes records in the possession of the Malden Public Schools. The appeal is for the Secretary of Public Records to compel the RAO, ... CFO/Controller of the City of Malden to provide the records in his possession or under his control to the requestor, or to simply state that no such responsive records are in his possession or under his control as required by law. If [the City of Malden’s Controller] has no responsive records in his possession or under his control, all he must do is so declare. The City’s Responses In its April 8, 2024 response, the City explains that “this request is a duplicate of two other FOIA request[s].” In its April 16, 2024 response, the City further explains that “on March 5, 2024, [the requestor] sent two (2) requests to the City of Malden (One addressed to the Malden Public Schools, and the other to the City of Malden)... these requests were seeking the same information.” The City further explains that “the City has already responded to this duplicate request.” With both responses, the City provides a copy of a March 19, 2024 fee estimate provided to the requestor by the Malden Public Schools in response to a request for the same records. 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

Carol A. Desiderio SPR24/1074 Page 3 April 25, 2024 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, the City has used its superior knowledge of the records in order to assist the requestor, and forwarded the previous 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). 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