Commonwealth Transparency v. Malden, City of (SPR 20242504)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 18, 2024 SPR24/2504 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 Commonwealth Transparency (“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 15, 2024, the requestor sought the following: [1.] Please provide all public records requests made by the Boston Globe or any reporters from the Boston Globe for the time period January 1, 2023 through December 31, 2023 for the City of Malden, Malden Public Schools, or any part/function of the City, except for and excluding the Malden Police Department and excluding the Malden Fire Department. [2.] Please provide any and all communications that reference any requests from number 1 above [3.] Please provide all responses and responsive documents from number 1 above The City responded on August 27, 2024. Unsatisfied with the City’s response, the requestor petitioned this office, and this appeal, SPR24/2504, 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 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 SPR24/2504 Page 2 September 18, 2024 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 his appeal petition, the requestor contends that “OpenCommonwealth’s request was VERY specific.” The requestor goes on to argue the following: Further, Malden failed to provide all communications as specifically requested for the four (4) public records identified as “: 2023-0315; 2023-0286; 2023-0207 and 2020-0054”. OpenCommonwealth is aware of public records requests from the Boston Globe which are responsive to our request that are not included in the four (4) listed requests above. Malden claims that there are “28,619 emails in the school account and 4,656 in the City Account” which are “including “@Globe.com”” evidently for the time period specified. OpenCommonwealth will accept the 33,275 emails which Malden has identified as potentially responsive and parse them for responsive records if Malden provides them as requested... The City’s August 27th Response In its August 27, 2024 response, the City states the following: In order to assist you, the City requests that better define your request by providing: - Search term (s) for our electronic system - Department/Individual that may have the record sought - Refining the time period for the search Please note that the City and School IT departments have conducted a search of our email system for emails including “@Globe.com”. It has resulted in 28,619 emails in the school account and 4,656 in the City Account. We have no way of knowing if anything has to be redacted for privacy purposes or exempted for exemption purposes without looking at each one.

Carol Ann Desiderio SPR24/2504 Page 3 September 18, 2024 In addition, our FOIADirect system includes the following requests for public records from the Boston Globe: 2023-0315; 2023-0286; 2023-0207 and 2020- 0054. You are free to search the replies to these requests. Should you like these to be the “search terms” for your request, we can accommodate. In its response, the City has not denied the requestor any access to records, but is seeking clarification regarding the scope of his request. Please be advised that it is valid for the custodian of records to suggest a “reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency or municipality to produce records sought more efficiently and affordably.” See G. L. c. 66, § 10(b)(vii). Given the expansiveness of his request, and the availability of some records on the City’s website, the requestor is encouraged to provide the City with the needed clarification regarding emails referenced in the City’s response. G. L. c. 66, § 10(a)(i) (the request must reasonably describe the public records sought). 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). 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), (b)(ii). In this case, the City has used its knowledge of the records in order to provide an estimate of the number of emails responsive to the request and to recommend a modification to the scope of the request. Based on the foregoing, it is unclear what the basis of the requestor’s appeal is. The requestor is advised that all petitions for appeal “shall specifically describe the nature of the requestor’s objections to the response or failure to timely respond.” 950 C.M.R. 32.08(l)(f). Conclusion Accordingly, I will consider this administrative appeal closed. Sincerely, Manza Arthur Supervisor of Records cc: Commonwealth Transparency