Commonwealth Transparency v. Malden, City of (SPR 20242218)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 20, 2024 SPR24/2218 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 Open Commonwealth (“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 24, 2024, the requestor sought the following records: Please extract a list of all records relinquished by [an individual] when she relinquished her role as City Solicitor per M.G.L. c66, § 14. This request specifically seeks but is not limited to all public records in [the individual]’s possession as the City Solicitor and in his [sic] personal email account(s) including but not limited to the private email account ... where public business was performed as documented in multiple public records. This request also specifically seeks the oath and attestation of [the individual] that she delivered these records as required in M.G.L. c66, § 14. This requests specifically requests that the extracts be provided in ONLY .CSV or .XLSX form. The City responded on August 5, 2024, indicating that it does not possess responsive records. Unsatisfied with the City’s response, the requestor petitioned this office, and this appeal, SPR24/2218, 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 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 SPR24/2218 Page 2 August 20, 2024 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 the following: Specifically OpenCommonwealth is aware of dozens of emails of ... the former City Solicitor which are without question public records which are from or to her private, non-city email account... It should go without saying that any this email account [sic] is NOT under the possession or control of Malden, despite this, [the individual] continued for years to use her private email account to perform official and public body (Malden City Council) business, and the entirety of the City’s administration of the municipality (the City of Malden) including the Mayor, the Clerk, the RAO’s of multipole departments and more were aware of this and actively sent and received emails with [the individual] at her private 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 email account to communicate official and public body business. OpenCommonwealth has in its possession many emails which have this email account as a sender or recipient and have included a few (eleven) ... 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 her term. Malden has failed to even provide her termination/resignation to their response. There is no doubt of her responsibility to provide these records to Malden on or around the date of her termination/resignation and provide an oath that same has been completed. The City’s August 5th Response In its August 5, 2024 response, the City states that “[t]here is no such list that exists nor does the City Clerk have any such oath and attestation on file.”

Carol Ann Desiderio SPR24/2218 Page 3 August 20, 2024 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, 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 City, and is unsatisfied with the response, they may appeal that response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Open Commonwealth