Malden News Network v. Malden, City of - Office of the City Solicitor (SPR 20243106)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 2, 2024 SPR24/3106 Alicia A. McNeil, Esq. City Solicitor City of Malden 215 Pleasant Street Malden, MA 02148 Dear Attorney McNeil: I have received the petition of Brian DeLacey, of Malden News Network, 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 30, 2024, Mr. DeLacey requested the following: [A] copy of the transcripts identified in the FINAL TRANSCRIPT NOTICE of the case Benevolent Botanicals LLC, et al. v City of Malden, et al., as described in the court notice dated 10/29/24... Additionally ... any record of payment made by the City of Malden to obtain copies of these transcripts. The City responded on November 15, 2024. Unsatisfied with the City’s response, Mr. DeLacey petitioned this office, and this appeal, SPR24/3106, was opened as a result. Subsequent to the opening of this appeal, in a letter to this office and Mr. DeLacey on November 20, 2024, the City provided a further response. 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 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

Alicia A. McNeil, Esq. SPR24/3106 Page 2 December 2, 2024 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 his appeal petition, Mr. DeLacey contends that “the City provided records of payment, but not transcripts. These transcripts document a Land Court case; there is no indication this matter is under seal. As you can see from the records attached, public funds obtained these transcripts.” He further argues that “these public records should be provided under Public Records Law, since public money purchased the transcripts and no public records law exemption is cited for withholding.” The City’s November 15th and November 20th Responses In its November 15, 2024 response, the City provides a copy of the “purchase order for payment of the transcript in the case of Benevolent Botanicals LLC, et al. v. City of Malden.” The City also indicates that it is withholding the responsive transcript pursuant to the attorney- client privilege. In its November 20, 2024 response, the City reiterates its claim of the attorney-client privilege, further cites Exemption (d) of the Public Records Law for withholding the responsive transcript, and indicates that the transcript is the subject of pending litigation. See G. L. c. 4, § 7(26)(d); see also 950 C.M.R. 32.08(2)(b). Specifically, the City explains the following: The City of Malden is in active litigation in the Land Court in the matter of Benevolent Botanicals, et al v. City of Malden, Docket No. 22 MISC 000076. This trial is ongoing and is scheduled for closing arguments in February 2025. As such, the need for nondisclosure of this requested document relating to the City’s continued preparation for litigation is necessary, as litigation is adversarial, and production of this document could interfere with the legal strategy of the City. The trial transcript is crucial in aiding the Legal Department in its trial strategy as it prepares for briefing relevant trial issues. Pending Litigation 950 C.M.R. 32.08(2)(b) provides in pertinent part: the Supervisor may deny an appeal for, among other reasons if, in the opinion of the Supervisor:

Alicia A. McNeil, Esq. SPR24/3106 Page 3 December 2, 2024 1. the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation. This office has reviewed the trial court’s docket and verified that the civil litigation, relating to the record that is the subject of Mr. DeLacey’s request, is active and ongoing in the Massachusetts Land Court. See Benevolent Botanicals, et al. v. City of Malden, (Land Court Docket No. 22-MISC-000076 (November 22, 2024)). In light of the pending matter, I decline to opine on this matter at this time. See 950 C.M.R. 32.08(2)(b). Please note that a change in the status of this action could impact the applicability of 950 C.M.R. 32.08(2)(b). Sincerely, Manza Arthur Supervisor of Records cc: Brian DeLacey