Commonwealth Transparency v. Malden, City of (SPR 20242338)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 3, 2024 SPR24/2338 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 August 6, 2024, the requestor sought the following: Please provide the following public records in the possession or under the control of the City of Malden, Massachusetts (“Malden”): Please provide all communications with [a specified email]@integritynews.com. Please provide all documents/records that contain “[a specified email]@integritynews.com” and/or “integritynews.com”. This request seeks all forms of communications and/or written and/or electronic records, including databases and/or applications. The City responded on August 19, 2024. Unsatisfied with the City’s response, the requestor petitioned this office, and this appeal, SPR24/2338, 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. 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 SPR24/2338 Page 2 September 3, 2024 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 August 19th Response In its August 19, 2024 response, the City states the following: There are no documents that support this request. Open Commonwealth previously requested all information pertaining to this entity in its FOIADirect 2024-0425 (which referenced back to Integrity News Outlet/ [specified email]@integritynews.com original FOIA request 2024-0386). All information was provided to you in your prior request. Current Appeal In the appeal petition, the requestor contends that “OpenCommonwealth is in possession of responsive records which Malden is withholding. Malden states ‘There are no documents that support this request’, however they do not provide a single responsive record, they have responsive records they are withholding them.” Possession, Custody, or Control 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 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). Conclusion Where the City confirmed that it does not possess additional records responsive to the request, and has assisted the requestor by referring him to the previous request containing the responsive records, 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).

Carol Ann Desiderio SPR24/2338 Page 3 September 3, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Open Commonwealth