Open Commonwealth, v. Malden, City of (SPR 20261415)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 29, 2026 SPR26/1415 Joanne Perperian Records Access Officer City of Malden 215 Pleasant Street Malden, MA 02148 Dear Ms. Perperian: 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 6, 2026, the requestor sought, “[t]he following documents/records in the possession or under the control of your town/city/municipality for the time period January 1, 2016 through February 6, 2026:” [1] Any insurance policy(ies), including declarations pages, exclusions, list(s) of covered locations and values, and/or any other documents in your possession or under your control for the risks of loss related to torts: theft of, damage to and destruction of assets; errors and omissions; and natural disasters. Please also provide the amounts of claim(s) and/or settlements for the previous ten (10) years, including any NDA agreements. [2] Any contracts, policies or other legal instruments which provide any indemnification or indemnify your town/city/municipality for vehicle related risks, automobiles, or other mobility/transportation risks or perils. Please also provide the amounts of claim(s) and/or settlements for the previous ten (10) years, including any NDA agreements. [3] Any contracts, policies or other legal instruments which provide any indemnification or indemnify your town/city/municipality for tort related risks including lawsuit(s) risks or perils. Please also provide the amounts of claim(s) and/or settlements for the previous ten (10) years, including any NDA agreements. [4] Any contracts, policies or other legal instruments which provide any indemnification or indemnify your town/city/municipality for liability related risks including libel, slander, intentional infliction of distress risks or perils. 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 SPR26/1415 Page 2 April 29, 2026 Please also provide the amounts of claim(s) and/or settlements for the previous ten (10) years, including any NDA agreements. [5] Any contracts, policies or other legal instruments which provide any indemnification or indemnify your town/city/municipality for liability risks or perils such of errors and omissions. Please also provide the amounts of claim(s) and/or settlements for the previous ten (10) years, including any NDA agreements. Previous Appeal This request was the subject of a previous appeal. See SPR26/0946 Determination of the Supervisor of Records (March 31, 2026). In my March 31st determination, I ordered the City to clarify whether it possessed additional records responsive to the request. Subsequently, the City responded on April 16, 2026. Unsatisfied with the response, the requestor petitioned this office and this appeal, SPR26/1415, 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. The City’s April 16th Response In its April 16, 2026 response, the City states the following: [1] The Requester does not appeal this section therefore no response is required. [2] … Based on the Requestor’s subject matter, which is highlighted above, the City does not have any NDA agreements related to this subject matter. [3] … Based on the Requestor’s subject matter, which is highlighted above, the City does not have any NDA agreements related to this subject matter.

Joanne Perperian SPR26/1415 Page 3 April 29, 2026 [4] … Based on the Requestor’s subject matter, which is highlighted above, the City does not have any NDA agreements related to this subject matter Current Appeal In the appeal petition, the requestor argues the following: Malden has failed to provide a single NDA, even though Malden is in possession of many NDA’s which were specifically requested, verbatim. Further the entirety of the request specifically sought all legal instruments indemnifying Malden, specifically including NDA’s, NDAs are, legal documents and contracts which provide Malden indemnification. Malden has failed to provide a single claim or any claim data whatsoever even though Malden has been involved in and settled multiple lawsuits, claims and other issues relating to liabilities specifically requested in the PRR. No Duty to Create Records The duty to comply with requests for records extends 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). Under the Public Records Law, 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). In accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). In a telephone call between a Public Records Division staff attorney and a representative of the City on April 29, 2026, the City confirmed that it does not possess records responsive to the requestor’s request. Where the City has confirmed that it does not possess records responsive to the request, and has no duty to create records in response to a request, I find that the City has met its burden in responding to this request under the Public Records Law. See G. L. c. 66, § 10(b)(iii). Conclusion Accordingly, 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).

Joanne Perperian SPR26/1415 Page 4 April 29, 2026 Sincerely, Manza Arthur Supervisor of Records cc: Commonwealth Transparency