Malden News Network v. Malden, City of (SPR 20242697)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 9, 2024 SPR24/2697 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 September 9, 2024, the requestor sent the following on the City’s FOIA Direct web portal, “[t]his public records request is for all records related to the Malden Center MBTA event on 9/3/24 which relate in any way to the creation, transmission, use or publishing of the photo embedded in the attached document. Further details of this request are included in the attached document.” A screenshot from the City’s FOIA Direct web portal shows that, in submitting the request, the requestor included an attached document with an embedded photo. The attachment further specifies the following: Please provide any records - email, text messages, meeting notices (invitations, acceptances, or declinations) as well as DMs (Direct Messages on Twitter), FaceBook Messenger, WhatsApp, Signal, Telegram, Dropbox or other form of software (including publishing and social media management “tools”). This should include all attachments, media, edits to original media, and corresponding AddressBook entries. . . . Records sought are those related to any individual or process which handled this described image, including any sender or receiver. . . . Records to be provided should include all available ORIGINAL metadata - including creation, modification or other relevant dates - as well as any To: From: CC: and BCC and other “mailing” information. . . . The City responded on September 24, 2024. Unsatisfied with the City’s response, the requestor petitioned this office and this appeal, SPR24/2697, was opened as a result. 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 SPR24/2697 Page 2 October 9, 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. The City’s September 24rd Response In its September 24, 2024 response, the City provided responsive records in five email attachments and advised, “[w]e have completed the work in reference to your request. . . .” Current Appeal In the appeal petition, the requestor contends, “[t]he original request clearly anticipated metadata would be provided. . . . but it was not.” Records in Existence; Possession, Custody, or Control The City 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). 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). Based on the City’s response, and information provided in the requestor’s appeal petition, it is unclear whether the City possesses additional records responsive to this request. Specifically, it is unclear whether the City possess any metadata responsive to the request. The City is asked to clarify.

Carol Ann Desiderio SPR24/2697 Page 3 October 9, 2024 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 (10) 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