Malden News Network v. Malden, City of (SPR 20242909)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 5, 2024 SPR24/2909 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. . . . 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 SPR24/2909 Page 2 November 5, 2024 Previous Appeal This request was the subject of a previous appeal. See SPR24/2697 Determination of the Supervisor of Records (October 9, 2024). In my October 9th determination, I found that it was unclear whether the City possessed additional records responsive to the request. Specifically, I ordered the City to clarify whether it possessed any metadata responsive to the request. Subsequently, the City responded on October 22, 2024. Unsatisfied with the City’s response, the requestor petitioned this office and this appeal, SPR24/2909, 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 the appeal petition, the requestor asserts that the City possesses additional metadata responsive to the request and states, “we appreciate these additional files, which do provide more context. However, the City continues to withhold and not provide the fundamental records requested. . .” The requestor further contends, “[the requestor] would be satisfied if the City provided ALL metadata of that photo from the time it was taken . . . and the electronic path . . . that image followed on the way to being published. . .” Upon review of the file, it appears that the requestor’s appeal comprises only their claim that the City is withholding additional responsive metadata. The requestor explains, “there was much more we did not receive that was expected, but we are not appealing for those other items.”

Carol Ann Desiderio SPR24/2909 Page 3 November 5, 2024 The City’s October 22nd Response In its October 22, 2024 response, the City provided responsive records in four email attachments and advised, “[a]ttached are the only additional documents we can excerpt from the two social media posts in question.” Subsequent to the opening of this appeal, I learned that the City confirmed with this office that it is not in possession of any additional metadata responsive to this request. No Duty to Create Records Please be advised, under the Public Records Law a custodian is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d). In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See 32 Op. Att’y Gen. 157, 165 (May 18, 1977). 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). Conclusion Accordingly, where the City has confirmed that it does not possess additional responsive metadata, and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. The requestor is advised that this office shares jurisdiction with the Superior Court of the Commonwealth of Massachusetts. See G. L. c. 66, § 10A(c). Sincerely, Manza Arthur Supervisor of Records cc: Malden News Network