Commonwealth Transparency v. Malden, City of (SPR 20251078)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 24, 2025 SPR25/1078 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 April 11, 2025, the requestor sought “… the draft and final minutes, the notes, recordings and other materials used in the preparation of such minutes and all documents and exhibits used at the session …” for an April 7, 2025 meeting of the Malden School Committee. The City responded on April 18, 2025. Unsatisfied with the City’s response, the requestor petitioned this office and this appeal, SPR25/1078, 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. 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 SPR25/1078 Page 2 April 24, 2025 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 April 18th Response In its April 18, 2025 response, the City stated: The regular session minutes for April 7, 2025 have not yet been created or reviewed and there has been no Committee meeting since the meeting on April 7, 2025. As such, regular session minutes do not yet exist in either approved or draft form. Similarly, executive session minutes for April 7, 2025 have not yet been created or reviewed and do not yet exist. The Committee is in the process of scheduling review of the regular and executive session minutes for April 7, 2025 in accordance with the requirements of the OML. As such, the regular and executive session minutes for April 7, 2025 and any associated records are not currently available. Current Appeal In the April 18, 2025 petition to this office, the requestor stated: Malden is withholding responsive records without any cause, exemption, or privilege log. Notes of the meeting exist, votes taken at the meeting exist, as do other documents and exhibits, which remain unaddressed by the response. Malden[’]s response expressly admits that they are in the process of reviewing BOTH the regular and executive session minutes … 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

Carol Ann Desiderio SPR25/1078 Page 3 April 24, 2025 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