Malden News Network v. Malden, City of - Office of the City Clerk (SPR 20242237)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 21, 2024 SPR24/2237 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 June 26, 2024, the requestor sought the following: [A]ny email created or received by any member of the Mayor’s Office or the Controller’s office providing direction, guidance, requirements, obligations or options related to any changes to be made to the Malden Community Fund Committee, the Malden Community Fund Committee, Inc., including any directions for exchange of accounting records, money, funds, representations, non-disclosures, or other fiduciary, accounting, legal structure, or organizational actions to be taken. The Requested records are within the timeframe from May 1, 2024 until your receipt of this request. The City responded on July 15, 2024, providing one responsive record. Additionally, on July 23, 2024, the requestor sought the following: [A]ny records created or received by any member of the Mayor’s Office or any generally recognized Administrative function, office, consultant, advisor, staff or personnel acting on behalf of the City of Malden (including the Solicitor’s Office, the Controller’s office, the Treasurer and any accounting function) concerning correspondence, meetings (invitations, declinations, confirmations), requests, expectations, legal guidelines, direction, guidance, requirements, obligations or options related to any Malden Community Fund Committee, Inc., or any practices 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 SPR24/2237 Page 2 August 21, 2024 related to handling funds related to the Surrounding Community Agreement with Wynn (aka Encore). . . . Records sought are within the timeframe from May 1, 2024 until your receipt of this request. The City responded on August 6, 2024, seeking clarification. Unsatisfied with the City’s responses, the requestor petitioned this office, and this appeal, SPR24/2237, 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 15th and August 6th Responses In its July 15, 2024 response to the June 26th request, the City provided one responsive record. In its August 6, 2024 response to the July 23rd request, the City asked for clarification concerning the timeframe of the request. On August 6, 2024, the requestor provided the City with the requested clarification regarding his two public records request. Where the requestor has provided the City with the needed clarification, it is uncertain why the City has not provided the requestor with the requested records. 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). To the extent that responsive records exist, I find the City must provide them in a manner consistent

Carol Ann Desiderio SPR24/2237 Page 3 August 21, 2024 with the Public Records Law or identify an exemption that applies to withhold the records from disclosure. G. L. c. 66, § 10(b). See G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). The City must clarify this matter. 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. The requestor may appeal the substantive nature of the City’s response within 90 days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Malden News Network