Commonwealth Transparency v. Malden, City of (SPR 20242599)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 30, 2024 SPR24/2599 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 23, 2024, the requestor sought the following: Please extract a list of any individuals who electronically conduct and/or communicate official city business including but not limited to employees, members of boards or commissions, contactors, etc. on email systems which are not under the control of the City of Malden. ... This request seeks all responsive records, with no limitation on date or time, and within the possession or under the control of the City of Malden. This requests specifically seeks, the employee/official name, title, and the email address(es) used to conduct and/or communicate official business of the City of Malden. This requests specifically requests that the export be provided in ONLY .CSV or .XLSX form. Previous Appeal This request was the subject of a previous appeal. See SPR24/2251 Determination of the Supervisor of Records (August 22, 2024). In my August 22nd determination, I ordered the City to clarify whether it possesses additional records responsive to the request. Subsequently, the City responded on August 27, 2024. Unsatisfied with the City’s response, the requestor petitioned this office, and this appeal, SPR24/2599, was opened as a result. Subsequent to the opening of this 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 SPR24/2599 Page 2 September 30, 2024 appeal, the City provided a further response to the requestor and this office on September 17, 2024. 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: Malden’s original and first response provided a single document in response which is/was woefully incomplete and is missing key individuals who are well known to the City, its leadership, the City Clerk (Malden’s main RAO), the School Department and its clerk (the Scholls [sic] main RAO), and the Legal Department. Malden has excluded all City Councilors who have used and some who do to this day exclusively continue to use non-city email addresses to conduct City and Public Body Business. Malden has excluded all School Committee Members who have used and some who do to this day exclusively continue use non-city email addresses to conduct City and Public Body Business. The City’s Responses In its August 27, 2024 response, the City states that “[t]he City/School is not in possession of a document that lists the personal emails for either the School Committee or City Council.” The City also provides the requestor with the private email address used by one City Councilor “for a sub-committee that she chairs, Citizens Engagement & Inclusion Committee.” In its previous August 7, 2024 response, the City provided “a list of members of

Carol Ann Desiderio SPR24/2599 Page 3 September 30, 2024 Malden’s boards and commissions and their email addresses, some of whom use personal email addresses to communicate city business.” In an email to this office and the requestor on September 17, 2024, the City reiterates that it “is not in possession of a document that lists personal email addresses of City Council or School Committee,” and further explains that “there is not a way of extracting this information.” Possession, Custody, or Control; No Duty to Create Documents 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). Further, 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). However, 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 confirmed that it does not possess additional records responsive to the request, and has used its superior knowledge of the records in its possession to assist the requestor in obtaining his desired information, I find that the City has met its burden in responding to this request. 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