Malden News Network v. Malden, City of (SPR 20242967)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 14, 2024 SPR24/2967 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 October 18, 2024, the requestor sought the following records relating to two specified social media posts: [1.] Original photo or video media file, with metadata for time, device, etc. [2.] Any communications related to this post - e.g. email, inquiries, invitations, follow-up, texts, media consents [3.] An index of ALL LIKES created and stored in the PROFILE section of this account [4.] An index of all LISTS created by this account (aka “Your Lists”) [5.] An index of all MESSAGES created by this account (see the envelope icon) [6.] An index of all NOTIFICATIONS (categories of ALL, VERIFIED< and MENTIONS) [7.] The Mayor’s Calendar - including details, edits - from 10/7/24 to the date of this request [8.] Name, email address, phone number used to maintain @MayorOfMalden [9.] Method of two-factor authentication used to secure this account (e.g. text, phone number, authentication app or security key) [10.] The USERNAME used to access this account [11.] Any records created by the Mayor ... or any paid staff member in the Mayor’s Office, claiming, justifying, declaring, certifying or asserting @MayorOfMalden is a PRIVATE account[.] The City responded on October 29, 2024, providing numerous responsive records. Unsatisfied with the City’s response, the requestor petitioned this office, and this appeal, 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 SPR24/2967 Page 2 November 14, 2024 SPR24/2967, 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. The City’s October 29th Response In its October 29, 2024 response, the City provides numerous responsive records. Current Appeal In the appeal petition, the requestor argues the following: This request seeks various categories of records - 11 in total - for two X.com posts. The response fails to provide sought after records, apart from a brief email change provided. ... At no point does the City of Malden indicate the requested records do not exist. Indeed, the City of Malden responds only in a non-specific way with reference to “prior request and responses regarding ownership of X account @MayorofMalden.” Records in Existence; Possession, Custody, or Control Please be 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). Further, in accordance with the Public Records Law, custodians are expected to use their superior

Carol A. Desiderio SPR24/2967 Page 3 November 14, 2024 knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). Additionally, public records must be maintained and kept in a manner that allows access by the general public, as they are subject to mandatory disclosure upon request. G. L. c. 66, § 10(a); see also Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979). Based on the information provided in the requestor’s appeal petition, it is unclear whether the City possesses additional records responsive to the request. If the City does possess additional responsive records, it must either provide the records, or cite an exemption to the Public Records Law, and explain with specificity how such an exemption applies to withhold or redact the records. See G. L. c. 66, § 10(b)(iv) (a written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based”). 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