City Cannot Sue to Challenge Public Records Supervisor’s Orders Before Enforcement: Malden v. Supervisor of Public Records (AC 25-P-235, November 3, 2026)

A Malden citizen named Bruce Friedman runs a website called OpenCommonwealth.org. Between January and November 2024, he submitted 165 public records requests to the City of Malden, along with ninety-two appeals and eighteen reconsideration requests to the state Supervisor of Public Records. The city, frustrated by the volume and cost of compliance, sued Friedman three times in Superior Court, seeking to overturn the supervisor’s orders and to be relieved of its obligation to respond to his requests. The Appeals Court shut down two of those suits under the anti-SLAPP statute, holding that the city cannot sue a records requestor preemptively. If the city wants to challenge the supervisor’s orders, it must refuse to comply and wait for an enforcement action.

The Facts

Friedman’s public records practice generated three separate lawsuits. In case one, he requested all email and calendar information for a city employee’s email address, including drafts and deleted items. The city told the supervisor that a preliminary search found at least 49,000 responsive emails. The city filed a fee petition seeking $62,368.75 to segregate and redact, based on an estimated 2,496.75 hours. The supervisor denied the petition, finding it untimely: Friedman’s request came in at 10:33 p.m. on May 20, 2024, and the city did not file the fee petition until June 5. The city says the request should be deemed received the next business day and that the supervisor wrongly counted Memorial Day as a business day. The supervisor disagreed. The city sued.

In case two, the city filed three harassment petitions with the supervisor under G. L. c. 66, § 10 (c), which allows the supervisor to relieve an agency of its obligation to respond if requests are “frivolous or designed to intimidate or harass” and “not intended for the broad dissemination of information to the public about actual or alleged government activity.” The city alleged that Friedman had sent a private investigator to a former employee’s home, publicly posted records disclosing another former employee’s home address and social security number, and submitted an outrageous volume of duplicative requests. The supervisor rejected all three petitions, finding the city had not met the statutory standard. The city sued again, seeking to be relieved from responding to all of Friedman’s pending and future requests. The prayer for relief, however, sought no remedy related to the investigator or the posting of personal information.

In case three, the supervisor again denied a fee petition as untimely after Friedman submitted four requests on August 30, 2024, and the city responded on September 17. The city sued a third time.

In all three cases, the city asserted claims under G. L. c. 30A, § 14 (judicial review of agency adjudicatory proceedings), G. L. c. 249, § 4 (certiorari), and G. L. c. 231A (declaratory judgment). Friedman moved to dismiss under the anti-SLAPP statute, G. L. c. 231, § 59H, arguing that the suits were based solely on his protected petitioning activity. Three different Superior Court judges denied his motions in cases two and three (and denied the motion in case one without prejudice for noncompliance with a procedural rule). Friedman appealed.

The Statutory Scheme

The public records law, G. L. c. 66, § 10A, gives requestors and the Attorney General the right to bring enforcement actions against agencies and municipalities. A requestor “may obtain judicial review only through an action in superior court seeking relief in the nature of certiorari,” and “may initiate a civil action to enforce the requirements of . . . chapter [66].” The statute says nothing about suits by agencies or municipalities to challenge the supervisor’s orders.

The court interpreted this silence as intentional. “If the Legislature intentionally omits language from a statute, no court can supply it.” The statutory scheme, the court said, contemplates that an agency or municipality aggrieved by the supervisor’s order may refuse to comply. If the requestor or Attorney General then brings an enforcement action, the burden shifts: the agency or municipality “must prove that it is entitled to withhold the records” notwithstanding the supervisor’s order. If no enforcement action is ever brought, the agency or municipality suffers no harm.

The city objected that under this reading, it risks paying the requestor’s attorney’s fees if it loses the enforcement action. The court acknowledged the point but said the argument belongs in the Legislature. The attorney’s fee provision, the court noted, “reflects the Legislature’s recognition that ‘[t]he public has an interest in knowing whether public servants are carrying out their duties in an efficient and law-abiding manner’ and that broad access to governmental information is ‘an essential ingredient of public confidence in government.'”

The Anti-SLAPP Analysis

Under Bristol Asphalt Co., Inc. v. Rochester Bituminous Prods., Inc., 493 Mass. 539 (2024), the anti-SLAPP framework operates in two stages. First, the moving party must show that the claims are based solely on petitioning activity. Second, if that showing is made, the opponent must prove that the petitioning “was devoid of any reasonable factual support or any arguable basis in law” and “caused actual injury” to the opponent. If the opponent cannot make that showing, the motion must be allowed.

In case two, the trial judge found that the city’s complaint had a basis beyond Friedman’s petitioning because Friedman misused public records and engaged in conduct extending “beyond bona fide petitioning.” The Appeals Court disagreed. The only relief the city sought was to be relieved of its obligation to respond to Friedman’s requests. That relief arose entirely from Friedman’s public records requests, appeals, and reconsideration requests, all of which are protected petitioning activity. The complaint’s references to the private investigator and the posting of personal information led to no requested remedy. Therefore, Friedman satisfied stage one.

In case three, the trial judge found that the city’s claims were substantially based on how the supervisor “calculates time restrictions under the law,” not on Friedman’s petitioning. Again, the Appeals Court disagreed. The city’s fee petition was denied only because Friedman submitted public records requests on August 30, and the supervisor determined the city’s petition was untimely relative to those requests. The lawsuit therefore arose from Friedman’s petitioning. Friedman satisfied stage one there, too.

At stage two, the city could not show that Friedman’s petitioning caused it actual injury. The city might never suffer any injury unless and until someone seeks to enforce the supervisor’s orders and the city is ordered to turn over records without recouping its costs. Even then, the court said, it would be “hesitant to conclude that being ordered to comply with the law is an injury for purposes of G. L. c. 231, § 59H.”

Why the Other Claims Fail

The absence of actual injury also doomed the city’s three causes of action.

A certiorari action under G. L. c. 249, § 4, requires “a substantial injury or injustice arising from the proceeding under review.” The city could not prove an injury at this time, so it failed that element.

A declaratory judgment under G. L. c. 231A requires an actual controversy and an injury within the area of concern of the relevant statutory scheme. The city suffered no injury yet. The court also held that allowing declaratory relief here would circumvent the statutory scheme by permitting the city to sue before the requestor or Attorney General brings an enforcement action. “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,” the court wrote. A requestor may have no intention to press the matter in court and cannot be forced to do so.

Judicial review under G. L. c. 30A, § 14, is available only to a “person or appointing authority aggrieved by a final decision of any agency in an adjudicatory proceeding.” An adjudicatory proceeding is one “in which the legal rights, duties or privileges of specifically named persons are required by constitutional right or by any provision of the General Laws to be determined after opportunity for an agency hearing.” Section 10A does not require the supervisor to hold a hearing before ruling on a records request or fee petition, and no provision of the public records law or its regulations requires sworn testimony, cross-examination, or any other procedural hallmark of an adjudicatory hearing. Therefore, the supervisor’s determinations do not qualify as adjudicatory proceedings, and the city is not entitled to Chapter 30A review.

Costs and Fees

The anti-SLAPP statute provides that if the court grants a special motion to dismiss, “the court shall award the moving party costs and reasonable attorney’s fees.” Friedman represented himself. The court held that he is not entitled to attorney’s fees because he has not incurred any. The statute does not contain language comparable to G. L. c. 231, § 6F, which expressly compensates self-represented litigants for “reasonable costs, expenses and effort” in defending against frivolous claims. The absence of similar language in the anti-SLAPP statute indicates that the Legislature did not intend to compensate self-represented litigants for their own efforts in bringing a successful special motion.

Friedman is, however, entitled to costs under the general cost-shifting rules of the Massachusetts Rules of Civil Procedure and the Rules of Appellate Procedure.

Why It Matters

This decision clarifies the narrow procedural path available to municipalities and agencies that disagree with the Supervisor of Public Records. They cannot sue the requestor. They cannot seek declaratory or certiorari relief. They cannot obtain Chapter 30A review. They must refuse to comply with the supervisor’s order and defend themselves if and when the requestor or Attorney General brings an enforcement action. That framework, the court said, is what the Legislature intended.

The holding also signals that anti-SLAPP protection extends to public records requestors, even prolific ones. A municipality that sues a requestor before any enforcement action risks dismissal and an award of costs. The court’s reasoning shows the Legislature’s policy choice: broad access to public records is a public good, and the costs and burdens of compliance fall on the public agency, not the requestor.

For practitioners, the decision resolves an open question about the supervisor’s orders: they are not immediately reviewable. A municipality that wishes to challenge an order must be prepared to litigate in an enforcement action, with the attendant risk of paying the requestor’s attorney’s fees if it loses.

Read the full opinion: Malden v. Supervisor of Public Records of the Commonwealth (AC-25-P-235, November 3, 2026).