Malden News Network v. Malden, City of (SPR 20242533)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 19, 2024 SPR24/2533 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 Brian DeLacey 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 26, 2024, Mr. DeLacey requested the following: [1] [C]opies of any media or text used in each of the posts in the attached FILE, created by the City on X.com, in original format, including all metadata (location, date/time, device type, make, model, serial number), [2] [A]ny messages used to exchange the media or text – by any application – by which the media was sent or received (including text, Signal, Telegram, Voice Mail, Email, any social media platform, storage medium, or service.) [3] [A]ny consent for photo/video release form signed…[.] The City responded on September 5, 2024. Unsatisfied with the response, Mr. DeLacey petitioned this office and this appeal, SPR24/2533, 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 SPR24/2533 Page 2 September 19, 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 September 5th Response In its September 5, 2024 response, the City states, “the links included in the attachment to your request are not from the official City of Malden X (@TheCityofMalden) account. As such, no member of the mayor’s staff processed these posts. The use of governmental staff and resources (including phone or computer) were not utilized.” Current appeal In his appeal petition, Mr. DeLacey states that the City is denying 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 custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). Additionally, under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). 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). In a telephone conversation between a staff attorney of the Public Records Division and the City on September 18, 2024, the City confirmed that there are no records responsive to the request. Conclusion Where the City confirmed that it does not possess records responsive to Mr. DeLacey’s request, and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. If Mr. DeLacey 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 SPR24/2533 Page 3 September 19, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Brian DeLacey