Malden News Network v. Malden, City of (SPR 20242917)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 4, 2024 SPR24/2917 Carol A. Desiderio City Clerk City of Malden 215 Pleasant Street 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 October 11, 2024, the requestor sought, “…any records related to the cancellation of the ‘Hazardous Waste Day’ as announced on 10/11/24… please include any and all email, text, attachments, reports, analysis, spreadsheets etc. created or received in relation to this, whether with City of Malden staff, employees, consults or third party providers. Provide all accounting records related to this event…” The City responded on October, 24, 2024. Unsatisfied with the response, the requestor petitioned this office and this appeal, SPR24/2917, 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. 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 A. Desiderio SPR24/2917 Page 2 November 4, 2024 The City’s October 24th response In the City’s October 24, 2024 response, the City provided responsive records. Current Appeal In the current appeal, Malden News Network claims that the City did not provide all the records responsive to the request. In a telephone conversation between a staff member of the Public Records Division and a representative of the City, the City confirmed it had no additional records responsive to this request. No Duty to Create Records Under the Public Records Law, the City is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d); 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 any additional records, 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