Commonwealth Transparency v. Malden, City of - Public Schools (SPR 20242396)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 6, 2024 SPR24/2396 Ms. Janell Summers Department Record Access Officer Malden Public Schools 110 Pleasant Street Malden, MA 02148 Dear Ms. Summers: I have received the petition of Commonwealth Transparency (“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 August 9, 2024, the requestor sought the following: Please produce [an identified] . . . [“]list of the emails that were deleted” . . . . Please produce all communications which contain “deleting email” in any part off the subject line from January 1, 2024 through August 9, 2024. This request seeks all responsive records, with no limitation on date or time . . . . This request specifically includes the body, the attachments, the subject and the metadata of the responsive documents. This requests [sic] specifically requests that emails be produced in only .eml, .msg or .pst format. This request specifically includes all email accounts and addresses . . . including group and resource email addresses. The School responded on August 22, 2024. Unsatisfied with the School’s response, the requestor appealed, and this case, SPR24/2396, was opened as a result. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all 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

Ms. Janell Summers SPR24/2396 Page 2 September 6, 2024 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. Att’y 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. See 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 School’s August 22nd Response In its August 22, 2024 response, the School provided the responsive records in the form of a two-page PDF containing one redaction and an Excel spreadsheet titled “DisableAccount[.]” The School explains: Enclosed please find all records responsive to your request. Malden’s search for all communications containing “deleting email” in the subject line produced the enclosed email. Malden has blacked out a live google doc link which may still be able to be edited if disclosed. However, it has converted the contents of the google doc link into the enclosed Excel spreadsheet. . . . Current Appeal In the appeal, the requestor contends, “there are other responsive documents which Malden has not provided” and that “[t]he responsive emails are redacted without proper exception.” The requestor additionally states, “[t]he . . . requested metadata [was] not provided” and that “[t]he . . . email messages were not provided in the format . . . requested.” Burden of Specificity; Records in Existence; Preferred Format Under the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. G. L. c. 66, § 10(b)(iv) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based . . .”); see also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. See also Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are

Ms. Janell Summers SPR24/2396 Page 3 September 6, 2024 narrowly construed and are not blanket in nature). The School’s response did not contain the specificity required in a denial of access to public records. Although the School states that it “blacked out a live google doc link . . . [and] converted the contents of the google doc link into the [provided] Excel spreadsheet[,]” the School did not cite an exemption in support of its redaction. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Additionally, based on the School’s response, in conjunction with the requestor’s appeal, it is unclear if the School possesses additional records responsive to the request, including “[t]he specifically requested metadata[.]” 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). The School is further advised that pursuant to the Public Records Law, “[t]he records access officer shall provide the public records to a requestor by electronic means unless the record is not available in electronic form or the requestor does not have the ability to receive or access the records in a usable electronic form. The records access officer shall, to the extent feasible, provide the public record in the requestor’s preferred format or, in the absence of a preferred format, in a searchable, machine readable format.” See G. L. c. 66, § 6A(d). In this case, where the requestor has described the format of the responsive records they seek, it is unclear why the School has not provided the records in the requested format. The School must explain whether it is feasible to provide the responsive records in requestor’s preferred format. The School must clarify these matters. Conclusion Accordingly, the School 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. Sincerely, Manza Arthur Supervisor of Records cc: Commonwealth Transparency