Malden News Network v. Malden, City of (SPR 20250034)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 17, 2025 SPR25/0034 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 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 December 17, 2024, Mr. DeLacey requested the following: In general, this request seeks financial records made or received 1/1/24 onwards, related to PUBLIC RECORDS LAW or OPEN MEETING LAW litigation. In greater specificity, this request seeks FINANCIAL, FUNDING, and ACCOUNTING records related to INITIATION, AUTHORIZATION, ALLOCATION or CONTINUATION of such LITIGATION. This request seeks RECORDS such as purchase orders (initial and updates or extensions or addition of funds), checks paid, funds wired, emails, expense reports, journal entries, financial reports or other accounting records made or received. This request is further narrowed in scope to only such litigation where the plaintiff or defendant is the Supervisor of Public Records, the Secretary of the Commonwealth, or the Attorney General of the Commonwealth, and even further by specifically EXCLUDING minutes of any public body. [emphasis in original] . . . Additionally, this request seeks email, text, or other written communication, made or received in relation to the aforementioned categories of records requested, whether they exist in physical or digital form, by any individual serving in the Mayor’s Office, the Controller’s Office, or the Malden City Council. The City responded on January 2, 2025. Unsatisfied with the City’s response, Mr. DeLacey petitioned this office, and this appeal, SPR25/0034, was opened as a result. 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 SPR25/0034 Page 2 January 17, 2025 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 his appeal petition, Mr. DeLacey contends that “in one part of the Response, the City actively DENIED the release of records,” (emphasis in original) and he further argues the following: In most of the other areas of the request, except for what we have labeled journal entries ... the City of Malden has not identified records or categories of records which reasonably must exist: Who authorized the litigation? Who approved the expenditure of litigation funding? What purchase orders exist and what do they look like? The City of Malden has not identified records withheld even though additional records would be reasonably expected to be within the possession, custody, or control of the agency or municipality, as required by “A Guide to the Massachusetts Public Records Law”, Updated December 2022, and Massachusetts General Law (M.G.L.) Chapter 66, Section 10(b)(ii). The City’s January 2nd Response In its January 2, 2025 response, the City provides numerous responsive records, and states the following: Per the Library Board of Trustees and their attorney, the City of Malden does not have possession, custody, or control over requested records concerning the

Carol Ann Desiderio SPR25/0034 Page 3 January 17, 2025 litigation commenced by the Malden Public Library, by and through its Board of Library Trustees vs. Andrea J. Campbell, as she is Attorney General of the Commonwealth of Massachusetts (Docket No. 2481CV03173). The Board of Trustees of the Malden Public Library, the plaintiff and entity with authority to commence any such litigation using its private funds, is not an agency of the City, but rather, is an independent private corporation that is not subject to the Public Records Law. 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: 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 records that are the subject of Mr. DeLacey’s request, is active and ongoing in the Massachusetts Superior Court. See Malden Public Library, et al. v. Andrea J. Campbell, et al. (Middlesex County Superior Court Docket No. 2481-CV-03173, Jan 10, 2025). 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