Malden News Network v. Malden, City of (SPR 20242430)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 9, 2024 SPR24/2430 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 August 3, 2024, the requestor sought: It appears the City receives annual ‘To whom it may concern’ letters from Encore, related to payments made to the City of Malden related to the Surrounding Community Agreement (SCA). Please provide copies of those letters, with bank receipts, cancelled checks, and generally speaking any “invoice packet” such as the one named INVOICESW6702_23_2023.PDF attached. We request these for each and every year any such payment related to the SCA has been made to the City Of Malden, INCLUDING the upfront payment described in APPENDIX A of the SCA. Additionally, please provide ANY correspondence or additional record created or received in relation to any modification, alteration, renegotiation, difference or change or delta from the schedule of payments described in APPENDIX A of the SCA. The City responded on August 19, 2024, providing records responsive to the request. Unsatisfied with the response, the requestor petitioned this office and this appeal, SPR24/2430, 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 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 SPR24/2430 Page 2 September 9, 2024 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. 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 City’s August 19th response In its August 19, 2024 response, the City states, “[w]e have completed the work in reference to your request… Attached is all of the documentation I have related to the information requested.” Current appeal In the appeal petition, the requestor states: [T]he City of Malden’s limited response is incomplete and inadequate. We expected specific records should exist and be in the custody and control of the City. This matter relates to significant, long-term policy, financial, and operational decisions made in Malden. … In conclusion, we seek records for each and every year any such payment related to the SCA has been made to the City Of Malden, INCLUDING the upfront payment described in APPENDIX A of the SCA. At this time, records reasonably described and reasonably expected to exist have not been provided. Therefore, we seek review and a directed order to respond appropriately. If the RAO does not have or cannot locate the records sought, for the timeframes requested, then they have an obligation under the Public Records Law to affirmatively disclose this. It is imperative that RECORDS requested which are not in the possession, custody, or control of the RAO must be identified as such. Based on the requestor’s appeal and the City’s response to the request, it is unclear if the City possesses any additional records responsive to the request. The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the

Carol Ann Desiderio SPR24/2430 Page 3 September 9, 2024 custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). However, 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). If the City does possess additional responsive records, it must either provide the records, or cite an exemption to the Public Records Law, and explain with specificity how such an exemption applies to withhold or redact the records. See G. L. c. 66, § 10(b)(iv) (a 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”). 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 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: Malden News Network