Commonwealth Transparency v. Malden, City of - Office of the City Clerk (SPR 20241698)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 12, 2024 SPR24/1698 Carol Desiderio City Clerk City of Malden 215 Pleasant Street Second Floor, Room 220 Malden, MA 02148 Dear Ms. Desiderio: On June 6, 2024, this office received your petition on behalf of the City of Malden (City) seeking an extension of time to produce records and relief from its obligation to produce responsive records requested by Open Commonwealth. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv); see also 950 C.M.R. 32.06(4). As required by law, it is my understanding that the City furnished a copy of the petition to the requestor, Open Commonwealth. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On May 20, 2024, the requestor sought “[a]ny and all electronic mail and calendar information exclusively for the . . . .cityofmalden.org account including any draft and any deleted items, for the period any time prior to and through May 21, 2024.” In an email to this Division on June 6, 2024, the requestor objects to the City’s petition for an extension of time and petition for relief, arguing “[t]he records requested by OpenCommonwealth are not designed to harassing or intimidate the City of Malden. They are designed to provide information to the public regarding the activities of the City. . . .The requests are neither serial/contemporaneous requests nor are they designed to intimidate or harass. The requests are intended for the broad dissemination of information to the public about actual or alleged government activity.” Current and Previous Appeal This request was the subject of a previous appeal. See SPR24/1597 Determination of the Supervisor of Records (June 10, 2024). In my June 10th determination, I learned that the City provided a supplemental response to the requestor and this office on June 5, 2024. Additionally, this request is the subject of a current appeal, SPR24/1669. A decision on this matter will be issued within 10 business days. 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 Desiderio SPR24/1698 Page 2 June 12, 2024 Petition for relief from obligation to provide public records Under the Public Records Law, upon a showing of good cause, the Supervisor of Records (Supervisor) may grant a single extension to an agency not to exceed 20 business days and a single extension to a municipality not to exceed 30 business days. In determining whether there has been a showing of good cause, the Supervisor shall consider, but shall not be limited to considering: (i) the need to search for, collect, segregate or examine records; (ii) the scope of redaction required to prevent unlawful disclosure; (iii) the capacity or the normal business hours of operation of the agency or municipality to produce the request without the extension; (iv) efforts undertaken by the agency or municipality in fulfilling the current request and previous requests; (v) whether the request, either individually or as part of a series of requests from the same requestor, is frivolous or intended to harass or intimidate the agency or municipality; and (vi) the public interest served by expeditious disclosure. G. L. c. 66, § 10(c). If the Supervisor determines that the request is part of a series of contemporaneous requests that are frivolous or designed to intimidate or harass, and the requests are not intended for the broad dissemination of information to the public about actual or alleged government activity, the Supervisor may grant a longer extension or relieve the agency or municipality of its obligation to provide copies of the records sought. Id. The filing of a petition does not affect the requirement that a Records Access Officer (RAO) shall provide an initial response to a requestor within ten business days after receipt of a request for public records. 950 C.M.R. 36.06(4)(b). Current Petition In its petition, the City asserts, “…[T]he serial requests submitted by Open Commonwealth and the series of contemporaneous requests submitted by Open Commonwealth are not intended for broad dissemination of information to the public about actual or alleged government activity; the serial requests and series of contemporaneous requests are frivolous and designed to intimidate and harass the City. Our Department and numerous other Departments have had to put aside regular business work and, on some occasions, work past the normal work hours to catch up with day to day work as a result of Open Commonwealth’s continuous and consistent requests. A tremendous amount of time is spent receiving and processing public records requests from this one requestor. These requests are far from harmless; they are negatively affecting the interests of other constituents who rely on the work of the City.”

Carol Desiderio SPR24/1698 Page 3 June 12, 2024 Based on the information provided in the City’s June 6th petition, I find that the City has not demonstrated that the requests are frivolous and not intended for the broad dissemination of information to the public about actual or alleged government activity, as required by G. L. c. 66, § 10(c). Petition for an Extension of Time Under the Public Records Law, upon a showing of good cause, the Supervisor of Records (Supervisor) may grant a single extension to an agency not to exceed 20 business days and a single extension to a municipality not to exceed 30 business days. In determining whether there has been a showing of good cause, the Supervisor shall consider, but shall not be limited to considering: (i) the need to search for, collect, segregate or examine records; (ii) the scope of redaction required to prevent unlawful disclosure; (iii) the capacity or the normal business hours of operation of the agency or municipality to produce the request without the extension; (iv) efforts undertaken by the agency or municipality in fulfilling the current request and previous requests; (v) whether the request, either individually or as part of a series of requests from the same requestor, is frivolous or intended to harass or intimidate the agency or municipality; and (vi) the public interest served by expeditious disclosure. G. L. c. 66, § 10(c). If the Supervisor determines that the request is part of a series of contemporaneous requests that are frivolous or designed to intimidate or harass, and the requests are not intended for the broad dissemination of information to the public about actual or alleged government activity, the Supervisor may grant a longer extension or relieve the agency or municipality of its obligation to provide copies of the records sought. Id. The filing of a petition does not affect the requirement that a Records Access Officer (RAO) must provide an initial response to a requestor within ten business days after receipt of a request for public records. 950 C.M.R. 36.06(4)(b). Current Petition In its petition, the City requests “an additional 30 business days beyond the time specified under the statute” and provides the following information in support of its request: [G]iven the broad scope of the request and the volume of potentially responsive records (resulting in over 49,000 emails) which require detailed review and redaction, the City submits that it is not reasonable to require it to produce the responsive records within 10 business days.

Carol Desiderio SPR24/1698 Page 4 June 12, 2024 … [A]dditionally, the employee who will perform the search and recovery, segregation and redaction process has many other responsibilities which they cannot ignore. The City will be unable to complete its review, redaction, and production of records during normal business hours of operation without an extension. In light of the need to collect, segregate and examine the records, as well as the capacity of the City to produce the records without an extension, the City has established good cause to permit an extension of time. G. L. c. 66, § 10(c)(i)-(iii). The City is granted an extension of 30 business days. Conclusion As described above, I find that the City has established good cause for a time extension of 30 business days. Additionally, I cannot grant the City’s petition seeking relief from its obligation to produce responsive records at this time. Please note, this office may deny an appeal if, in the opinion of the Supervisor of Records, the request is designed or intended to harass, intimidate, or assist in the commission of a crime. See 950 C.M.R. 32.08(2)(b)(2). Please note, the requestor has the right to seek judicial review of this decision by commencing a civil action in the appropriate superior court. See G. L. c. 66, §§ 10(c), 10(d)(iv)(4), 10A(c). Sincerely, Manza Arthur Supervisor of Records cc: Open Commonwealth