Commonwealth Transparency v. Malden, City of - Office of the City Clerk (SPR 20250353)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 11, 2025 SPR25/0353 Carol Ann Desiderio City Clerk City of Malden 215 Pleasant Street Malden, MA 02148 Dear Ms. Desiderio: I have received the petition of Commonwealth Transparency (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 February 1, 2025, the requestor sought the following records for the period October 20, 2024 to December 10, 2024: Any letter, electronic communication, and/or message including but not limited to written documents, emails (Electronic mail), text messages, collaboration messages from platforms like teams, WhatsApp, and Git; Where the subject matter is The Commonwealth of Massachusetts’ Emergency Shelter Policy, specifically, but not limited to Statement(s) on “Changes to the State’s Emergency Shelter Policy[.]” The City responded on February 5, 2025. Unsatisfied with the City’s response, the requestor petitioned this office and this appeal, SPR25/0353, 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 SPR25/0353 Page 2 February 11, 2025 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 February 5th Response In its February 5, 2025 response, the City stated: In accordance with G.L. c 66, Section 10 (a) (1), the City does not deem that “the request reasonably describes the public record sought”. A municipality is required to furnish a copy of the public record “provided that” three requirements are met and that no exemptions apply G.L. c 66, Section 10 (a). One such requirement is that “1) the request reasonably describes the public record sought”. 950 Code Mass. Regs Section 32.06(1)(a) (2017 states that a reasonable description of the requested record is necessary “so that the records can be identified and located promptly.” Reasonableness is incorporated throughout the law. The Mass courts have long referenced the federal law and case law that goes into depth about “reasonableness”. The reasonable description requirement is a necessary bulwark of the public records law, as the law “was not intended to reduce government agencies to full-time investigators on behalf of [requestors].” Assassination Archives & Research Ctr., Inc. v. Central Intelligence Agency, 720 F. Supp. 217, 219 (D.D.C. 1989). This case was referenced in the Appeals Court finding in Bruce Friedman vs. Division of Administrative Law Appeals & Another (Docket 2023-P-0369). The City suggested that the requestor clarify the request by providing “[d]epartment(s)/ [i]ndividual(s) that may have the records sought[,] [s]pecific search term(s) for our electronic system[,] [and] [s]pecific meeting dates for agendas/minutes.” Current Appeal In the February 6, 2025 petition to this office, the requestor objected to the City’s suggestions, claiming that other municipalities had successfully identified and provided records responsive to similar requests.

Carol Ann Desiderio SPR25/0353 Page 3 February 11, 2025 Active 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. In light of the ongoing litigation, City of Malden v. Manza Arthur, Supervisor of Records of the Public Records Division of the Office of William Francis Galvin, Secretary of the Commonwealth, William Francis Galvin, Secretary of the Commonwealth and OpenCommonwealth (Bruce Friedman D/B/A OpenCommonwealth.org), Docket No. 2481CV03069, I decline to opine on this matter at this time. See 950 C.M.R. 32.08(2)(b). It should be noted 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: Commonwealth Transparency