Commonwealth Transparency v. Malden, City of - Office of the City Clerk (SPR 20241869)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 11, 2024 SPR24/1869 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 20, 2024, the requestor sought: [T]he following documents/records in the possession or under the control of town/ city for the period any time prior to and through May 21, 2024: Time [sic] Any and all electronic mail and calendar information exclusively for [a specified] account including any draft and any deleted items: Previous Appeal This request was the subject of a previous appeal. See SPR24/1669 Determination of the Supervisor of Records (June 17, 2024). In my June 17th determination, I ordered the City to clarify whether it possesses additional records responsive to the request. Subsequently, the City responded on June 27, 2024. Unsatisfied with the City’s response, the requestor petitioned this office, and this appeal, SPR24/1869, 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). 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 SPR24/1869 Page 2 July 11, 2024 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. 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. Current Appeal In the appeal petition, the requestor contends that “no email was ever received, ... no metadata was ever received, [and] ... no attachments were ever received.” The requestor is advised that the request for emails, and the City’s response concerning that part of the request, was addressed in a separate appeal. See SPR24/1597 Determination of the Supervisor of Records (June 10, 2024). The City’s May 21st and June 27th Responses In its previous May 21, 2024 response, the City provided numerous calendar entries from January 2018 through May 2024. In its June 27, 2024 response, the City provides “an export file for the calendar entries of [the specified account]” including numerous columns of data for each calendar entry. Records in Existence Please be advised that 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). However, under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). In its June 27th response, the City confirms that “[w]e have no further documents pertaining to this appeal.” Conclusion Where the City confirmed that it does not possess additional records responsive to the request, I will now consider this administrative appeal closed. If the requestor is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, §§ 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies).

Carol Ann Desiderio SPR24/1869 Page 3 July 11, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Commonwealth Transparency