Commonwealth Transparency v. Malden, City of - Office of the City Clerk (SPR 20241634)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 13, 2024 SPR24/1634 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 April 8, 2024, the requestor sought the following for the period of January 1, 2018 through April 5, 2024: [1.] Any and all contracts, communications, or documents of any kind with [three specified terms] [2.] Any and all payments made to [three specified terms] [3.] Any and all conflict of interest documents for [three specified terms.] The City responded on April 18, 2024, providing records. Unsatisfied with the City’s response, the requestor petitioned this office and this case, SPR24/1634, was opened as a result. While this appeal was pending, the City provided a supplemental response on June 6, 2024. 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 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 SPR24/1634 Page 2 June 13, 2024 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 April 18th Response In its April 18, 2024 response, the City stated, “[p]er the Controller’s Office: There are no vendors in the Softright system for the 3 vendors you listed. Therefore, no payments have been made to any of them via the Softright system. Per the City Clerk’s Office: A search of our conflict of interest files in office did not produce any records.” Subsequent to the opening of this appeal, on June 6, 2024, the City sent an email to this office and stated the following: In reviewing the request, the City’s response was based on its belief that CT’s request was seeking “communications, documents and payments” as it related to contracts for the individuals and entity requested. It is clear from the City’s response that it did not consult the Information and Technology Department; but rather consulted the “Controller” and the “City Clerk” departments. Had the City read CT’s request to be inclusive of every email related to Mertz, it would have responded that the request was too broad. Furthermore, with the massive number of overall record requests received by the City, it is not at all inconceivable that a request could be interpreted differently or that the standard language on each request of “…email, email-attachments, calendar…” could be overlooked. There was no bad-faith intent on behalf of the City. Moreover, if the City intentionally acted in bad-faith, or intentionally provided inaccurate and untruthful responses, it would be nonsensical for the City to turn around and report that it has over 49,000 emails related to Mertz in response to CT’s appeal of SPR 24/1597. This was a simple case of how the Petitioner’s request was interpreted by the City. Current Appeal In the appeal petition, the requestor states the following: The City’s response remains silent on the entirety of the first request; “Any and all contracts, communications, or documents of any kind with the following”; including “email, email-attachments, text messages, calendar entries, voice mail messages and/or physical documents.” They only answered the second and third portions of the request.

Carol Ann Desiderio SPR24/1634 Page 3 June 13, 2024 … OpenCommonwealth received an email on another request where the City… identifies “at least Forty-Nine Thousand (49,000) emails”… which are clearly and demonstratively responsive to the request at issue in this appeal. Possession, Custody, Control Based on the requestor’s claim above, it is unclear whether the City possesses additional records responsive to the request. 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. 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”). 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). The City must clarify this matter. 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