Malden News Network v. Malden, City of (SPR 20242059)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 31, 2024 SPR24/2059 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 July 18, 2024, the requestor sought: For each of the calendar years 2013 - 2024, please provide any records serving as a ‘statement of the amounts recommended by [the Mayor] for proposed expenditures of the city for the next fiscal year’ which were to be funded by or in any way related to obligations, options or terms of The Wynn Malden Surrounding Community Agreement. Records include those submitted by the Mayor … to the City Council for any expenditure or appropriation to be funded in any relation to the Surrounding Community Agreement … Responsive records and statements include spreadsheets, presentations, PDF or other formatted documents, emails, reports, recommendations, legal and financial opinions, communications with any state or municipal employee or official (whether they represent Malden or any other government entity in Massachusetts.) … Responsive records include any (and all) portions of any budget document, or subsection thereof, making clear that portion which is “classified and designated so as to show separately with respect to each officer, department or undertaking for which an appropriation is recommended” in relation to terms of The Wynn Malden Surrounding Community Agreement. The City responded on July 18, 2024, providing responsive records to the request. Unsatisfied with the response, the requestor petitioned this office and this appeal, SPR24/2059, 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 SPR24/2059 Page 2 July 31, 2024 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. The City’s July 18th response In its July 18, 2024 response, the City states, “[a]ttached are the 2023 and 2024 appropriation orders.” Current appeal In the appeal petition, the requestor states, “[t]he City has failed to provide all records which are reasonably expected to be available. The small number of records is an implausible response given the nature of the request and the importance of the Government functions associated with creation of these types of records. … [T]he request sought records date back to 2013.” Based on the requestor’s petition and the City’s response to the request, it is unclear if the City possesses any additional 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). Consequently, the City must clarify whether records exist. 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 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.

Carol Ann Desiderio SPR24/2059 Page 3 July 31, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Malden News Network