Commonwealth Transparency v. Malden, City of - Office of the City Clerk (SPR 20241622)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 13, 2024 SPR24/1622 Carol Ann Desiderio City Clerk City of Malden 215 Pleasant Street, Room 220 Malden, MA 02148 Dear Ms. Desiderio: I have received the petition of Commonwealth Transparency (“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 May 13, 2024, the requestor sought, “the net school spending compliance letter and compliance reports from/for DESE for the years 2019, 2020, 2021, 2022, 2023, and 2024 for the City of Malden/Malden Public Schools.” The City responded on May 28 and May 29, 2024, providing records. Unsatisfied with the City’s response, the requestor petitioned this office and this case, SPR24/1622, 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. 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

Carol Ann Desiderio SPR24/1622 Page 2 June 13, 2024 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 Responses In its May 28, 2024 response, the City provided documents and stated, “[p]lease be advised that this request dated 5/14/2024 was entered into our FOIA Direct system (2024-0235). A response was furnished to Open Commonwealth on 5/24/2024. Please find response documents attached.” In its May 29, 2024 response, the City stated, “[a]gain, the City’s FoiaDirect 2024-0235 is captured in the screenshot below and is for the request in question. Please note, the OpenCommonwealth requests come in via email and we transfer into our system for tracking. Per appeal below ‘As of the date (COB 5-28-2024) OpenCommonwealth has not received any response from the City of Malden’ is inaccurate. A response and documents have been provided.” Current Appeal In the appeal petition, the requestor states the following: [The City] copied the responses to a different and distinct, separate PRR as an answer to the PRR at issue here… The request at issue in the appeal is and was “Please provide the net school spending compliance letter and compliance reports from/for DESE for the years 2019, 2020, 2021, 2022, 2023, and 2024 for the City of Malden/Malden Public Schools” NOT “… the Malden Public Schools Certification page for the End of Year report for the years 2019, 2020, 2021, 2022, 2023, and 2024 for the City of Malden/Malden Public Schools.” Which was provided as… indicated on 5/14/2024. The net school spending compliance letter(s) and compliance reports from/for DESE for the years 2019, 2020, 2021, 2022, 2023, and 2024 have not and were not provided. Possession, Custody, Control Based on the requestor’s claim above, it is unclear whether the City possesses additional records responsive to the request. 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). If the City does possess additional responsive records, it must either provide the records, or cite an exemption to the Public Records Law, and explain with specificity how such an exemption applies to withhold or redact the records. The City must clarify this matter.

Carol Ann Desiderio SPR24/1622 Page 3 June 13, 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: Commonwealth Transparency