Malden News Network v. Malden, City of - Office of the City Clerk (SPR 20242009)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 26, 2024 SPR24/2009 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 Malden News Network (“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 24, 2024, the requestor sought, “[f]rom 11/1/23 to the date you receive this request, please provide any correspondence (written, email, text etc.) and related documents or attachments”: [1] Between [a named individual] and any member of the Malden Public Library Trustees, whether by personal email address, phone/text addresses, or [a specific email address] [2] Received by [the individual] which includes the word “trustees” (with any form of capitalization) in the subject or body. [3] Received by [the individual], after being directed to her from the “Malden Public Library Trustees” webpage[.] The City responded on July 10, 2024, stating that no responsive records existed. Unsatisfied with the response, the requestor petitioned this office and this appeal, SPR24/2009, 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 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 SPR24/2009 Page 2 July 26, 2024 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. The City’s July 10th response In its July 10, 2024 response, the City states, it “does not possess the records requested. Information requested is not covered by the Public Records Law, as the Malden Public Library (“Trustees”) is non-city agency and a private corporation not subject to the Public Records Law. FOIA law does not require private organizations (such as the library) to release any records directly to the public, whether such records have been submitted to the federal government or not.” Current appeal In the appeal petition, the requestor contends that “[i]t seems implausible, unlikely, and unrefuted that some records must exist which are responsive to the original request.” Additionally, in correspondence included with the appeal petition, the requestor questions whether the City is “claiming that these records DO exist, but they are not public records according to your understanding?” Based on the requestor’s petition and the City’s response, it is unclear if the City possesses any records responsive to the request. 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, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). If the City does possess 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) (a written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based”). 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

Carol Ann Desiderio SPR24/2009 Page 3 July 26, 2024 within ten business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Malden News Network