Malden News Network v. Department of Revenue (SPR 20251818)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 3, 2025 SPR25/1818 Roger H. Randall, Esq. Counsel to the Commissioner Litigation Bureau Department of Revenue 100 Cambridge Street, 7th Floor Boston, MA 02114 Dear Attorney Randall: I have received the petition of Malden News Network (requestor) appealing the response of the Department of Revenue (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 9, 2025, the requestor sought the following records between the dates January 1, 2024 and June 9, 2025: [1] DOR Communications Explicitly Referencing Malden’s Special Revenue Funds or Accounts, such as the funds held in the “City Special Revenue Acct” … [2] All emails and associated attachments (e.g., DOC, PDF, XSL formats) where the record itself explicitly contains the exact phrase “Special Revenue Account” or “Special Revenue Fund,” or mentions a specific Malden municipal fund name formally classified by DOR as a Special Revenue Fund or Account. Category 2 records must have been created by, sent to, or received by DOR personnel, and exchanged with [fourteen identified email addresses] … [3] Any official DOR manuals, guides, videos (e.g. YouTube), municipal advisories, circulars, bulletins, policy statements, or published guidelines created or issued by DOR or its Division of Local Services (DLS) - whether in electronic document, paper-based, bound, web-based or other format - that were formally transmitted or made available to the City of Malden or its representatives (including, but not limited to, the email addresses listed in Category 2) and that specifically contain: [a] Official procedures or reporting requirements for Massachusetts municipalities related to financial reporting or fund management for any “Special Revenue Fund” or “Special Revenue Account”[;] 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

Roger H. Randall, Esq. SPR25/1818 Page 2 July 3, 2025 [b] Specific accounting or administrative obligations for municipalities concerning the proper use of any “Special Revenue Fund” or “Special Revenue Account”[;] [c] State requirements for the auditing of municipal funds, explicitly including sections or references identifying “Special Revenue Account/s” or “Special Revenue Fund/s”[;] Examples of such sought documents include, but are not limited to: [i] Catalogs or Directories of available manuals, training resources, archives of bulletins[;] [ii] The most recent edition of any DOR/DLS manual or guide on municipal finance that outlines accounting for or oversight of Special Revenue Accounts or Funds[;] [iii] Any DOR/DLS municipal advisories issued since January 1, 2024, defining the establishment, management, reporting, or auditing of municipal Special Revenue Accounts or Funds[;] [iv] Official templates or forms provided by DOR/DLS for municipal financial reporting, categorizing or other reporting for “Special Revenue Fund/s or Account/s”[;] [v] Audit reports or findings issued by DOR/DLS to the City of Malden since January 1, 2024, which mention the management, use, or auditing of “Special Revenue Accounts” or “Special Revenue Funds.” The Department responded on June 24, 2025. Unsatisfied with the response, the requestor petitioned this office and this appeal, SPR25/1818, 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. 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.

Roger H. Randall, Esq. SPR25/1818 Page 3 July 3, 2025 The Department’s June 24th Response In its June 24, 2025 response, the Department provided one email communication responsive to Items 1 and 2 of the request. With regard to Item 3 of the request, the Department informed the requestor that advisories, bulletins, guidance, and similar documents are publicly available on the Division of Local Services website, and consequently it “… does not need to send such publications out to the municipalities.” The Department further stated that it had “… no record of formally transmitting such materials to the City of Malden.” Current Appeal In the June 25, 2025 petition to this office, the requestor characterized the Department’s response as deficient and contended that the Department had failed to properly search for responsive records. In an email communication to this office on June 25, 2025, the Department confirmed that its June 24th response was accurate and asked that the requestor’s appeal be denied. No Duty to Create Records Please be advised, under the Public Records Law a custodian is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d). In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See 32 Op. Att’y Gen. 157, 165 (May 18, 1977). The duty to comply with requests for records extends only 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). Conclusion Given that all responsive records have been provided, and this office has no authority to compel the Department to create records, I will now consider this administrative appeal closed. If the requestor is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, §§ 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Malden News Network