Commonwealth Transparency v. Malden, City of - Office of the City Clerk (SPR 20241838)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 8, 2024 SPR24/1838 Carol Ann Desiderio City Clerk City of Malden 215 Pleasant Street Malden, MA 02148 Dear Ms. Desiderio: I have received the petition of Commonwealth Transparency (“requestor”) appealing the response of the City of Malden – Office of the City Clerk (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 19, 2024, the requestor sought the following: [1.] an export/listing of all email accounts for the @cityofmalden.org domain. [2.] an export/listing of all email accounts for the @maldenps.org domain. The City responded on June 24, 2024, providing records. Unsatisfied with the City’s response, the requestor petitioned this office and this case, SPR24/1838, 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 SPR24/1838 Page 2 July 8, 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 June 4th Response In its June 24, 2024 response, the City provided responsive records. Current Appeal In the appeal petition, the requestor states, “[t]he response document appears to provide a listing of ‘Active’ only maldenps.org email accounts, [the requestor]’s request was for ‘ALL’ email accounts of the maldenps.org domain. The response document fails to provide all cityofmalden.org email accounts. [The requestor] is in possession of emails from @cityofmalden.org email accounts which are not provided in their response.” Additional Records 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). 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 Anthony Rodrigues