Commonwealth Transparency v. Malden, City of - Public Schools (SPR 20242138)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 8, 2024 SPR24/2138 Timothy Sippel Superintendent Malden Public Schools 215 Pleasant Street Malden, MA 02148 Dear Superintendent Sippel: I have received the petition of Open Commonwealth (“requestor”) appealing the response of the Malden Public Schools (School) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 23, 2024, the requestor sought the following records: Please extract a list of all records relinquished by [a named individual] when he resigned his role and duties as School Committee Member per M.G.L. c66, § 14. This request specifically seeks but is not limited to all public records in [the individual]’s possession as a School Committee Member and in his personal email account(s) including but not limited to [a specified account]@gmail.com. This requests specifically requests that the extracts be provided in ONLY .CSV or .XLSX form. [sic] The School responded on July 26, 2024, providing one responsive record. Unsatisfied with the School’s response, the requestor petitioned this office, and this appeal, SPR24/2138, 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

Superintendent Timothy Sippel SPR24/2138 Page 2 August 8, 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. Current Appeal In the appeal petition, the requestor contends the following: Specifically OpenCommonwealth is aware of dozens of emails which are created by [the individual] who was a member of the Malden School Committee which involve his role, involve Malden School Committee business, and are without question public records which are from or to [the specified email]@gmail.com. It should go without saying that any @gmail.com account is NOT under the possession or control of Malden, despite this, [the individual] continued for years to use his private email account to perform official and public body business, and the entirety of the public body (the Malden School Committee) along with most, if not all of the administration of the municipality (the City of Malden) including the Mayor, the Clerk, the RAO’s of multipole [sic] departments and more were aware of this and actively sent and received emails with [the individual] at his private @gmail email account. There is also evidence that this account was also used by the public and [the individual] encouraged members of the public to use this private @gmail.com email account to communicate official and public body business. OpenCommonwealth has in its possession many emails which have this @gmail account as a sender or recipient and have included a few as an attachment hereto to substantiate our claims. Additionally, M.G.L. c66, § 14 requires that all public records in the possession of [the individual] must be relinquished to Malden upon the expiration of his term. Malden attached his resignation to their response ... which leaves no doubt that his responsibility to provide these records to Malden on or around June 30, 2023 and provide an oath that same has been completed. Subsequent to the opening of this appeal, in an email to this office on August 6, 2024, the requestor further argues that “Malden (Both the City and Malden Public Schools) have demonstrated the use of ‘private’ email addresses by public officials.” Additionally, in an email to this office on August 7, 2024, the requestor reiterates “that 101 of 160 individuals who are members of Malden’s boards and commissions exclusively use personal email accounts to communicate and do city business.”

Superintendent Timothy Sippel SPR24/2138 Page 3 August 8, 2024 The School’s July 26th Response In its July 26, 2024 response, the School states the following: The Request lacks specificity sufficient to enable the Committee to identify the requested items. See 950 CMR32.06(1)(b) (“requests for public records shall include a reasonable description of the requested record to the records access officer so that the records can be identified and located promptly.”). Notwithstanding the lack of sufficient specificity, the Committee provides the attached resignation letter. The Committee is not aware of any other “records relinquished” by [the individual] upon his resignation, and thus, all records responsive to the Request have been provided. Reasonable Description of Records Sought A request for records must reasonably describe the records sought. See G. L. c. 66, § 10(a)(i). In Chawla, the Superior court found that under the Public Records Law “[t]he reasonable description requirement contemplates that a requesting party will identify documents or categories of documents with sufficient particularity that government employees will be able to understand exactly what they are looking for, and then make a prompt production.” See Jaideep Chawla v. Dept of Revenue, Suffolk. Sup. No. 1784CV02087, at 2 (January 23, 2019). The court further indicated “[r]equests for documents that are articulated with very broad language that calls upon non-lawyer administrative personnel to interpret the scope of what is sought, and then make fine judgments about what documents are and are not sufficiently ‘related’ to the category of materials requested, will not satisfy this statutory standard.” (emphasis in original). Id. Based on the requestor’s original written request for “a list of all records relinquished by [the individual]” and “all public records in [the individual]’s possession,” and based on the information provided in the appeal petition and subsequent emails, I find it is unclear what specific records the requestor is seeking. Accordingly, if the requestor seeks specific records, they may wish to clarify their written request in order to reasonably describe the requested records. G. L. c. 66, § 10(a)(i) (the request must reasonably describe the public record sought). Conclusion Accordingly, I will consider this administrative appeal closed. If the requestor wishes to submit an additional public records request to the School, and is unsatisfied with the response, they may appeal that response within ninety (90) days. See 950 C.M.R. 32.08(1).

Superintendent Timothy Sippel SPR24/2138 Page 4 August 8, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Open Commonwealth