Malden News Network v. Malden, City of - Office of the City Clerk (SPR 20242090)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 6, 2024 SPR24/2090 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 1, 2024, the requestor sought the following: Please provide records (including email, text messages, reports, policy analyses, legal opinions, unpublished documents, correspondence with Everett city government, the Malden City Council, the Malden City Solicitor Kate Fallon, the Mass Gaming Commission, the Division of Local Services, MA DOR, DLS/DLSLAW and Wynn/Encore) which support, elucidate or further explain statements “We all agreed…”, “After discussing with …”, “Our intent all along was to …” and “it was determined that …” or that “the best approach would be to setup a separate entity” as published in the mayor’s June 26th MEMORANDUM regarding the “Encore Surrounding Community Agreement”. In particular, please any records which: 1. refer to “the Everett Community Fund”, by that name 2. refer to the “Everett Citizens Foundation” 3. inquire of or notify the Malden City Council on appropriations or allocations related to Malden’s handling of Wynn/Encore funds 4. Including email, applications, votes, meeting schedules/minutes, notices of funding, committee correspondence etc. any supporting documents for the statement “The committee did approve three one-off requests for support of community festivals … for a total of less than $28,000” 5. Any records, whether in draft or final form, of activities showing Malden’s intent or effort to establish a 501(c)(3) non-profit (as Everett did) to handle “casino” funds. 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 SPR24/2090 Page 2 August 6, 2024 The City responded on July 16, 2024, providing numerous responsive records. Unsatisfied with the City’s response, the requestor petitioned this office, and this appeal, SPR24/2090, 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. 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 July 17th Response In its July 17, 2024 response, the City provides a link to a website containing responsive records, and explains the following: [T]he City of Malden, through Its FOIA Direct system has responded to a number of Information requests pertaining to Surrounding Community Agreement, Mass Gaming Commission and the Community Fund. We direct you to FOIA Direct 2024-0332, 2024-0333 & 2024-0290 which speak to this topic. ... We do not believe we have any additional documents to provide. In addition, attached is an excel sheet that include additional FOIA Direct References for other information. In the appeal petition, the requestor contends the following: The request clearly described records sought. Based on reasonable expectations of records keeping and records management in the Commonwealth of Massachusetts, and apparent reliance for official formal policy-making statements, we expected specific records should exist and remain in the custody and control of the City given the significant, long-term policy, financial, and operational decisions made in areas related to the records requested.

Carol Ann Desiderio SPR24/2090 Page 3 August 6, 2024 Records in Existence; Possession, Custody, or Control 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). However, in accordance with the Public Records Law, 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). Based on the City’s response, along with information included in the original request and the requestor’s appeal petition, 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) (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 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: Malden News Network