Key Points

  • The Massachusetts Appeals Court reversed orders denying Bruce Friedman's anti-SLAPP special motions to dismiss in two of Malden's three suits and remanded for dismissal of the city's complaints against him.
  • The court held that the city's suits were based solely on Friedman's protected petitioning, including his records requests and appeals to the supervisor of records.
  • Under G. L. c. 66, ยง 10A, only requesters and the Attorney General may sue; a municipality that disagrees with a supervisor's order on a specific request must refuse to comply and defend any enforcement action, and suffers no injury until then.
  • The lack of actual injury also defeated the city's certiorari, declaratory-judgment and Chapter 30A claims, and Chapter 30A review was independently unavailable because the supervisor need not hold a hearing.
  • Friedman, who represented himself, is entitled to costs but not attorney's fees; the appeal in the first case was dismissed as not properly before the court.

The city of Malden cannot sue a resident to overturn state rulings on his public-records requests, the Massachusetts Appeals Court held Tuesday. The court ordered two of the city's lawsuits against him dismissed under the state's anti-SLAPP law, which lets a defendant move to dismiss a suit based solely on the defendant's petitioning of government.

Justice Henry wrote the opinion for a three-judge panel that also included Justices Rubin and Wood. The panel reversed Superior Court orders denying special motions to dismiss filed by Bruce Friedman, a Malden resident who runs a website called OpenCommonwealth.org.

The ruling holds that the public records law gives the right to sue only to records requesters and the Attorney General. A city or state agency that disagrees with an order of the Commonwealth's supervisor of records on a particular request must refuse to comply, then defend itself if someone sues to enforce the order. Until then, the court held, the city has suffered no injury it can take to court.

By the time Malden filed the second of its suits in November 2024, Friedman had submitted 165 public-records requests, ninety-two appeals and eighteen requests for reconsideration to the city that year, according to the opinion. The city's three suits named Friedman, the supervisor and the Secretary of the Commonwealth, and each sought review of the supervisor's orders in three ways: under G. L. c. 30A; through certiorari, a form of court review that corrects errors in agency proceedings; and through a declaratory judgment.

The first case arose from Friedman's May 2024 request for all e-mail and calendar records tied to a city employee's address. The city said a preliminary search turned up at least 49,000 responsive messages. It asked the supervisor for permission to charge $62,368.75, based on an estimated 2,496.75 hours of work to segregate and redact the documents. The supervisor denied that fee petition because the city had not filed it within ten business days of the request.

The third case involved a similar fee petition, on four requests from August 2024, that the supervisor also rejected as late.

In the second case, the city had asked the supervisor three times to relieve it of its obligation to answer Friedman's requests, arguing that the requests were meant to harass. The supervisor rejected all three petitions. In court, the city alleged that Friedman had sent a "personal investigator" to the home of a former city employee, publicly posted a former employee's home address and Social Security number, and submitted an "outrageous volume" of requests.

A Superior Court judge found that this alleged conduct gave the suit a basis beyond Friedman's petitioning. The panel disagreed, noting that the city's prayer for relief sought no remedy tied to that conduct. "Had Friedman not petitioned the supervisor, the city would have had nothing to challenge," Justice Henry wrote. The panel likewise rejected a third judge's finding that the fee case turned on how the supervisor counts time rather than on Friedman's requests.

The panel applied the two-stage framework the Supreme Judicial Court adopted in Bristol Asphalt Co. v. Rochester Bituminous Products in 2024. Once Friedman showed the suits rested solely on his petitioning, the city had to show that the petitioning lacked any reasonable basis and caused it actual injury. Passing over the first question, the court held that the city could not show injury, because "the city may not suffer any injury unless and until someone seeks to enforce the supervisor's orders and it is ordered to turn over records to Friedman without being able to recoup its costs."

The court added that even then it "would be hesitant to conclude that being ordered to comply with the law is an injury" under the anti-SLAPP statute. It read the records law's silence on suits by government bodies as deliberate. The Legislature, Justice Henry wrote, "intended to foreclose public agencies and municipalities from initiating actions to challenge orders issued by the supervisor with respect to a specific requestor."

In an enforcement suit, the city or agency bears the burden of proving it may lawfully withhold the records. "If no enforcement action is ever brought, then the public agency or municipality suffers no harm," the court held. Malden had argued that this reading forces a government body to risk paying the requester's attorney's fees if the requester wins. "The city is correct about the statutory framework, but its argument should be addressed to the Legislature," Justice Henry wrote.

The same lack of injury defeated each of the city's three claims, the court held. Allowing declaratory-judgment suits, it wrote, "would circumvent the statutory scheme, which gives only the records requestor and the Attorney General the right to file suit." It added that "the threat that a records holder may sue a records requestor and require the requestor to defend that suit may deter requests for public records." Review under Chapter 30A was also unavailable because the supervisor is not required to hold a hearing before ruling.

Friedman, who represented himself, will not receive the attorney's fees the anti-SLAPP statute ordinarily awards a winning movant. The panel held that he had incurred no such fees, though he is entitled to his costs, including appellate costs.

The panel dismissed the appeal in the first case as premature, because the trial judge had denied Friedman's motion without prejudice for failing to follow a Superior Court procedural rule. If the city does not voluntarily dismiss those claims, Friedman may move to dismiss them.

Friedman argued for himself; the city was represented by James R. Donnelly. Neither the supervisor nor the Secretary filed a brief in the appeal.

The second and third cases return to the Superior Court for entry of orders dismissing the city's complaints against Friedman. Friedman has filed counterclaims against the city in all three cases, and on remand he may pursue them or ask that they be dismissed.