Ethan Bagley v. Malden, City of (SPR 20251920)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 10, 2025 SPR25/1920 Joanne Perperian Public Records Access Officer City of Malden Office of the City Solicitor 215 Pleasant Street, Suite 420 Malden, MA 02148 Dear Ms. Perperian: I have received the petition of Ethan Bagley 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 12, 2025, Mr. Bagley requested “… all emails containing the word ‘homeless’ sent to or from [29 specified email addresses] between the dates of December 1, 2024 to February 11, 2025.” Prior Appeal This request was the subject of a prior appeal. See SPR25/0845 Determination of the Supervisor of Records (April 8, 2025). In my April 8th determination, I found that the City had provided Mr. Bagley with a supplemental response on April 3, 2025. The City responded further on July 1, 2025. Unsatisfied with the City’s responses, Mr. Bagley petitioned this office and this appeal, SPR25/1920, 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. 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

Joanne Perperian SPR25/1920 Page 2 July 10, 2025 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 April 3rd and July 1st Responses In its April 3, 2025 response, the City asked Mr. Bagley whether he would be interested in receiving emails where the word “homeless” appeared only in the attachments, or in the signature of an identified individual. On July 1, 2025, Mr. Bagley confirmed that he would like to receive the additional emails identified by the City. Subsequently on July 1, 2025, the City provided all remaining responsive records. Current Appeal In his July 2, 2025 petition to this office, Mr. Bagley characterized the City’s response as incomplete. In an email communication to this office on July 7, 2025, the City confirmed that it had provided Mr. Bagley with all records responsive to his request. 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 City to create records, I will now consider this administrative appeal closed. If Mr. Bagley 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).

Joanne Perperian SPR25/1920 Page 3 July 10, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Ethan Bagley