Commonwealth Transparency v. Malden, City of - Office of the City Clerk (SPR 20241873)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 15, 2024 SPR24/1873 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 June 27, 2024, the requestor sought the following: [A]ll communications including but not limited to email, text, social media, website postings, public proclimations, [sic] or any other applicable means of communication which discuss, communicate, or otherwise reference the early closure of the Malden City Hall on June 25, 2024. This request specifically seeks but is not limited to records related to the Mayor or anyone else declaring City Hall to close early, communications with the Malden Police Department regarding the closure of City Hall and the street in front of city hall including to parking, the parking department regarding closure of the street in front of City Hall, and any communications to City Hall staff. The City responded on June 27, 2024, providing a responsive record. Unsatisfied with the City’s response, the requestor petitioned this office, and this appeal, SPR24/1873, 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 SPR24/1873 Page 2 July 15, 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. The City’s June 27th Response In its June 27, 2024 response, the City provides one record responsive to the request. Current Appeal In the appeal petition, the requestor contends the following: OpenCommonwealth is in possession of three responsive records, which were not provided. Once again, Malden is withholding public records, claiming that there is one singular record, to unexpectedly close City Hall early, coordinate closing the street in front of City Hall, barricading parking in front of City Hall, and provide an extraordinary police presence to City Hall on June 25, 2024. 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). Additionally, 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 an email to this office on July 2, 2024, the City states the following: [N]ote that the only document pertaining to the early “closing” of City Hall Offices was provided to the [requestor]. Note, that the building was open for the City Council Meeting that was held that evening. We have no further documents. 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

Carol Ann Desiderio SPR24/1873 Page 3 July 15, 2024 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). Sincerely, Manza Arthur Supervisor of Records cc: Commonwealth Transparency