Commonwealth Transparency v. Malden, City of - Office of the City Clerk (SPR 20241754)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 26, 2024 SPR24/1754 Carol Desiderio City Clerk City of Malden 215 Pleasant Street Second Floor, 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 29, 2024, the requestor sought the following: …documents/records in your possession or under your control for the Malden Community Fund Committee, Inc. …for any time prior to and through May 29, 2024: [1] The bylaws of the corporation[;] [2] Any and all filings made with the Commonwealth of Massachusetts[;] [3] Any and all [Internal Revenue Service (IRS)] filings[;] [4] Any and all meeting notices[;] [5] Any and all meeting minutes[;] [6] Any EIN assigned to the corporation by the IRS[;] [7] Any EIN assigned by the Commonwealth of Massachusetts[;] [8] A copy of any and all banking statements for any and all banking/savings/share/investment accounts[;] [9] A copy of the financial ledger maintained for the corporation[;] [10] A copy of any expenditures made by the corporation[;] [11] A copy of any and all income to the corporation[;] [12] A copy of any and all donations made to the corporation[;] [13] A copy of any and all financial statements for the corporation[;] [14] A roster of any stockholders[;] [15] A roster of any donors[;] [16] The structure of the board of directors[;] [17] The process for electing directors and officers[;] 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 SPR24/1754 Page 2 June 26, 2024 [18] Meeting procedures[;] [19] Voting rights and procedures[; and] [20] A copy of any and all payments made to any person for any purpose, including but not limited to salary, benefits, bonuses, expenses, reimbursements. The City responded on June 10, 2024. Unsatisfied with the City’s response, the requestor petitioned this office and this appeal, SPR24/1754, 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. See 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. The City’s June 10th response In its June 10, 2024 response, the City attached several documents responsive to the request. The City stated, “[p]lease be advised the entity in question, ‘Malden Community Fund’, is a non profit corporate entity that is not under the control of the [City]. Therefore, there are no responsive documents of outgoing payments from the ‘Malden Community Fund.’” Current Appeal In the appeal, the requestor stated: The Malden Community Fund Committee is and was registered with the Secretary of the Commonwealth as a Not for Profit Corporation in 2019, and has failed to provide the following records which are required by the Secretary of the commonwealth and by the U.S. Government: [1] The bylaws of the corporation[;]

Carol Ann Desiderio SPR24/1754 Page 3 June 26, 2024 [2] Any and all filings made with the Commonwealth of Massachusetts[;] [3] Any and all [Internal Revenue Service (IRS)] filings[;] [4] Any and all meeting notices[;] [5] Any and all meeting minutes[;] [6] A copy of any and all banking statements for any and all banking/savings/share/investment accounts[;] [7] A copy of the financial ledger maintained for the corporation[;] [8] A copy of any expenditures made by the corporation[;] [9] A copy of any and all income to the corporation[;] [10] A copy of any and all donations made to the corporation[;] [11] A copy of any and all financial statements for the corporation[;] [12] A roster of any stockholders[;] [13] A roster of any donors[;] [14] The structure of the board of directors[;] [15] The process for electing directors and officers[;] [16] Meeting procedures[;] [17] Voting rights and procedures[; and] [18] A copy of any and all payments made to any person for any purpose, including but not limited to salary, benefits, bonuses, expenses, reimbursements. Wherefore [requestor] requests … the Malden Community Fund Committee to perform a diligent search for all responsive records and then to provide all responsive records without delay and without charge as they failed to provide all responsive records in good faith …. No Duty to Create Records Please be advised, under the Public Records Law a custodian is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d). In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See 32 Op. Att’y Gen. 157, 165 (May 18, 1977). 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). Where the original request was submitted to the City, and the City has provided records in its possession, custody, or control that are responsive to the request, I find the City properly responded to this public records request. Further, based upon a telephone conference between a staff attorney of the Public Records Division and a representative of the City, the City confirmed that all responsive records have been provided. Conclusion Accordingly, where the City does not possesses any additional records responsive to the request, and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. If the requestor is unsatisfied with the resolution of this

Carol Ann Desiderio SPR24/1754 Page 4 June 26, 2024 administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. c. 66, §§ 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Commonwealth Transparency