Commonwealth Transparency v. Malden, City of - Office of the City Clerk (SPR 20242201)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 16, 2024 SPR24/2201 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 Commonwealth Transparency (“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 May 29, 2024, the requestor sought the following records: …documents/records in your possession or under your control for the Malden Community Fund Committee, Inc. …for any time prior to and through May 29, 2024: [1] The bylaws of the corporation[;] [2] Any and all filings made with the Commonwealth of Massachusetts[;] [3] Any and all [Internal Revenue Service (IRS)] filings[;] [4] Any and all meeting notices[;] [5] Any and all meeting minutes[;] [6] Any EIN assigned to the corporation by the IRS[;] [7] Any EIN assigned by the Commonwealth of Massachusetts[;] [8] A copy of any and all banking statements for any and all banking/savings/share/investment accounts[;] [9] A copy of the financial ledger maintained for the corporation[;] [10] A copy of any expenditures made by the corporation[;] [11] A copy of any and all income to the corporation[;] [12] A copy of any and all donations made to the corporation[;] [13] A copy of any and all financial statements for the corporation[;] [14] A roster of any stockholders[;] [15] A roster of any donors[;] [16] The structure of the board of directors[;] [17] The process for electing directors and officers[;] [18] Meeting procedures[;] 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 SPR24/2201 Page 2 August 16, 2024 [19] Voting rights and procedures[; and] [20] A copy of any and all payments made to any person for any purpose, including but not limited to salary, benefits, bonuses, expenses, reimbursements. Previous Appeal This request was the subject of a previous appeal. See SPR24/1754 Determinations of the Supervisor of Records (June 17, 2024 and July 26, 2024). In my July 26th determination, I ordered the City to clarify whether it possessed additional records responsive to the request. Subsequently, a representative of the Malden Community Fund (Fund) responded on August 2, 2024, providing additional responsive records. Unsatisfied with the response, the requestor petitioned this office, and this appeal, SPR24/2201, 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. Current Appeal In the appeal petition, the requestor contends, among other things, OpenCommonwealth has commenced litigation against The Malden Community Fund, Inc for non-response of SPR 24/1897 and will not request an appeal from the SPR as there is ongoing litigation in that matter (Middlesex Superior Court Docket# 24-CV-2011). The requestor further contends that the response includes “improper redactions,” and that the response “is silent to many requested items.” The requestor also claims the following:

Carol Ann Desiderio SPR24/2201 Page 3 August 16, 2024 Emails regarding the Malden Community Fund, Inc. have always been exchanged on @cityofmalden.org email accounts and that is again further demonstrated in the records released today. All of the requested records are under the direct control of the three directors at the City of Malden, these records were created, sent, received, managed and maintained under their City of Malden accounts and systems. The Fund’s August 2nd Response In its August 2, 2024 response, a representative for the Fund provides numerous responsive records, and argues the following: While I continue to maintain the good faith belief that the Malden Community Fund is a separate legal entity organized in the Commonwealth of Massachusetts (EIN # 84-3772801), and therefore not subject to the Public Records Law, I am providing the following documents in the interest of transparency and for the public’s benefit. Pending Litigation 950 C.M.R. 32.08(2)(b) provides in pertinent part: the Supervisor may deny an appeal for, among other reasons if, in the opinion of the Supervisor: 1. the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation. This office has reviewed the trial court’s docket and verified that the civil litigation, relating to the records that are the subject of this request, is active and ongoing in the Massachusetts Superior Court. See Bruce Friedman, D/B/A OpenCommonwealth.org vs. Maria Luise, as an Individual and the Malden Community Fund, Inc. et al., (Middlesex Superior Court Docket No. 2481-CV-02011 (Aug. 5, 2024)). In light of the pending matter, I decline to opine on this matter at this time. See 950 C.M.R. 32.08(2)(b). Please note that a change in the status of this action could impact the applicability of 950 C.M.R. 32.08(2)(b).

Carol Ann Desiderio SPR24/2201 Page 4 August 16, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Commonwealth Transparency