Commonwealth Transparency v. Malden, City of (SPR 20242544)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 23, 2024 SPR24/2544 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 July 18, 2024, the requestor sough the following: From the time such records begin, through 7/18/2024, please extract the author and all recipients (To:, Cc:, and/or Bcc:), date (but not the body or attachments) sent or received by any email address in the possession and/or under the control of the City of Malden, including but not limited to the City (@cityofmalden.org) (thus search all systems), where any address under the control of [a named individual and specified email addresses] appears as either/or both the author or recipient (To:, Cc:, and/or Bcc:) AND where any email address of [another individual] appears as either/or both the author or recipient (To:, Cc:, and/or Bcc:) AND where any email address of [a third individual] appears as either/or both the author or recipient (To:, Cc:, and/or Bcc:). This request also seeks all responsive calendar items, including invitations, declinations, and/or acceptances. This requests specifically seeks [sic], the To:, From:, Cc:, and Bcc: address fields, the Date and Time that the message was sent and/or received, and whether there was or was not an attachment. This requests specifically requests that the export be provided in ONLY .CSV or .XLSX form. Previous Appeals This request was the subject of previous appeals. See SPR24/2189 Determination of the 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 SPR24/2544 Page 2 September 23, 2024 Supervisor of Records (August 16, 2024) and SPR24/2410 Determination of the Supervisor of Records (September 9, 2024). In my September 9th determination, I closed SPR24/2410 in light of the City providing numerous supplemental responses to the requestor. Unsatisfied with the City’s responses, the requestor petitioned this office, and this appeal, SPR24/2544, 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. 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 the following: 1. The Original request specifically sought the CC: and the BCC: fields which are missing from this response. 2. Malden claims in the attached response that Column “D”, the TO: Column “The file speaks for itself. Column D includes all: To, cc, bcc” 3. Removing email addresses from the CC: field and then adding email addresses to the TO: field is altering the record by definition. 4. Removing email addresses from the BCC: field and then adding email addresses to the TO: field is altering the record by definition. 5. Concatenating TO:, CC:, and BCC:, is alteration of the original records, it also fails to provide the requested data, it also fails to provide the requested data in the specific format requested. 6. The public records received are by admission not the original records, they do not represent the original records accurately and are therefore altered and nonresponsive. 7. The ability of Malden to provide records in the form of if there is an attachment

Carol Ann Desiderio SPR24/2544 Page 3 September 23, 2024 and what the attachment is titled is absolutely possible, either the given email does or does not have an attachment and the attachment will have a name. Whether or not Malden has the technical skill or tooling or interest to do so, even if it is a manual process is the only consideration for the SPR relating to our appeal on this specific issue. Upon review of the appeal, it appears that the requestor does not object to the redactions made to the spreadsheet pursuant to Exemptions (c) and (o) of the Public Records Law. The City’s Responses In its August 27, 2024 response, the City provides an additional responsive records and explains “that the City’s IT Department has performed a review of the issues raised ... and have run a new extract for the emails in question. ... this extract included 398,427 lines of information. No fee was charged.” The City refers back to its previous July 25, 2024 response, indicating that numerous personal email addresses have been redacted pursuant to Exemptions (c) and (o) of the Public Records Law. See G. L. c. 4, § 7(26)(c), (o). In its September 4, 2024 response, the City explains that “[t]he file speaks for itself. Column D includes all: To, cc, bcc.” In its September 5, 2024, response, the City further explains that “[t]he responsive records were not altered. This is the extract provided by the IT department. The requestor is aware through multiple responses we have provided that the City’s system does not allow for whether or not ‘an attachment’ is attached to the file.” No Duty to Answer Questions, Create Documents The requestor is 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). However, 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). Additionally, 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 this case, where the City has provided an extract of the requested data for the records in its possession, custody, or control, and the City is not required to create documents or answer questions in response to a request, I find that the City has met its burden in responding to this request.

Carol Ann Desiderio SPR24/2544 Page 4 September 23, 2024 Conclusion Accordingly, I will 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). Sincerely, Manza Arthur Supervisor of Records cc: Commonwealth Transparency