Malden News Network v. Malden, City of - Office of the City Clerk (SPR 20242981)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 13, 2024 SPR24/2981 Carol Ann 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 21, 2024, the requestor sought, [A]ny access control list or inventory of user accounts, used by the City of Malden to access, edit or review multimedia posts with software tools which assist with scheduling, social media management, cross-platform-service (or cloud) posting, or management of visual content (such as photos and video)… Specifically, for any City of Malden official who shares access and has access knowledge to any such software tool or account - whether they elected, employed, contracted, paid privately, or volunteered from the public - please provide any record and / or email address documenting such access. The City responded on October 31, 2024, providing records. Unsatisfied with the City’s response, the requestor petitioned this office and this appeal, SPR24/2981, 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). 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 SPR24/2981 Page 2 November 13, 2024 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 31st Response In its October 31, 2024 response, the City provided records and stated, “[a]ttached are all documents responsive to this request. Please see prior request and responses regarding ownership of account(s) @MayorofMalden.” Current Appeal In the appeal petition, the requestor states, “[i]t is abundantly clear the response did not provide the requested ‘sufficient records’ for the two posts identified… The response does not mention a specific prior request. However, it seems clear this is coded language to indicate the City continues to refuse to provide - as public records - any and all records related to an account on X.com (aka Twitter) associated with the activities, records creation and sharing, of an account handle @MayorOfMalden.” Additional Records Based on the requestor’s claim above, 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). 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). The City must clarify this matter. 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.

Carol Ann Desiderio SPR24/2981 Page 3 November 13, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Malden News Network