Malden NewsNetwork v. Malden, City of - Office of the City Clerk (SPR 20242101)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 6, 2024 SPR24/2101 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 4, 2024, the requestor sought the following: From 1/1/19 to the date of this request, please provide any and all records created or received by the Mayor’s Office or any generally recognized Administrative function, office or personnel member of the City of Malden, including email and attachments, text messages, meeting calendar/appointments, policy documents, strategic plans, innovation ideas or any form of presentation or report related to City Council paper 297-19, or any similar paper, report, or records of communication, request, negotiation or consideration - whereby the Mayor would submit a plan or any update, promise, suggestion, or inquiry to the Malden City Council involving any earmark, allocation, appropriation, commitment, expenditure or other distribution of any percentage of casino mitigation funds to any use by the City of Malden. Responsive records should include, but not be limited to: transportation (e.g. road paving, transitional roads), public safety, business improvement, or the Malden impact, community needs, non-profits or any other use. In particular, response to this request should include any, every, and all communications between the Mayor’s Office and ANY member of the City Council, and the Finance Committee, for the calendar years 2019 to the present. All responsive records are sought in digital format, in which they have been maintained, including all metadata association with the creation and/or receipt of these records. 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 SPR24/2101 Page 2 August 6, 2024 The City responded on July 11, 2024. Unsatisfied with the City’s response, the requestor petitioned this office, and this appeal, SPR24/2101, 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 11th Response In its July 11, 2024 response, the City states that “[t]here are no responsive documents to this request.” In the appeal petition, the requestor contends the following: Based on reasonable expectations of good governance, records keeping and records management in the Commonwealth of Massachusetts, 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. Additionally, in an email to this office and the City on July 29, 2024, the requestor reiterates their claim that the City possesses responsive records, and also poses numerous questions to the City. Records in Existence; No Duty to Answer Questions, Conduct Research, Create Documents 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). Further, in accordance with the Public Records

Carol Ann Desiderio SPR24/2101 Page 3 August 6, 2024 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). 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 an email to this office and the requestor on July 29, 2024, the City further explains the following: Paper 297-19 was referred into Finance Committee on June 25, 2019 and that is where it died. [The City has] no evidence on record that the Chair of Finance ever took up Paper 297-19 for business nor is there any Council final paper showing it ever came back to the floor for a full vote. The Mayor never responded to the resolve because it was never sent to him. . . . After looking into this request multiple times, the City again reiterates, there are no responsive documents relative to this request. Additionally, in its July 29th email, the City provides an explanation of how “the funds from the surrounding community agreement” are handled, and provides a hyperlink to information and records of the City’s annual budgets. Conclusion Where the City confirmed that it does not possess records responsive to the request, and has assisted the requestor in obtaining the desired information, 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). Sincerely, Manza Arthur Supervisor of Records cc: Malden News Network