Laura H. Ortiz v. Lowell, City of - City Solicitor (SPR 20190509)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords March 21, 2019 SPR19/509 Hannah Pappenheim, Esq. Assistant City Solicitor City of Lowell - Law Department 375 Merrimack Street Lowell, MA 01852 Dear Attorney Pappenheim: I have received the petition of Laura Ortiz appealing the response of the City of Lowell (City) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). On August 1, 2018, Ms. Ortiz requested a copy of records that were not received from a previous request regarding "Student Activity Accounts" for several schools. In her March 6, 2019 petition, Ms. Ortiz indicates that the "Student Activity Accounts" for the following schools and school years have not been provided, specifically: 1. Student Activity Account records 2010-2011 school year: (a) Laura Lee (b) LeBlanc ( c) Lowell Day School (d) Bridge Program ( e) Washington (f) Lowell High School (g) Freshman Academy 2. Student Activity Account records 2011-2012 school year: (a) Cardinal O'Connell (b) Laura Lee ( c) Lowell Day School ( d) Bridge Program ( e) Stem Academy at Rogers School (f) Lowell High School (g) Freshman Academy 3. Student Activity Account records 2012-2013 school year: 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

Hannah Pappenheim SPR19/509 Page2 March 21, 2019 (a) Lowell Day School (b) Malloy ( c) Bridge Program (d ) Stem Academy at Rogers School (e ) Lowell High School (f) Freshman Academy 4. Student Activity Account records 2013-2014 school year: (a) Cardinal O'Connell (b) Lowell Day School (c) Bridge Program ( d) Lowell High School (e ) Freshman Academy 5. Student Activity Account records 2014-2015 school year: (a) Lowell High School (b) Freshman Academy 6. Student Activity Account records 2015-2016 school year: (a) Lowell High School (b) Freshman Academy 7. Student Activity Account records 2016-2017 school year: (a) Lowell High School (b) Freshman Academy 8. Student Activity Account records 2017-2018 school year: (a) Lowell High School (b) Freshman Academy Previous appeals The responsive requests and records were the subject of previous appeals. See SPR16/733; SPR18/314; SPR18/545; SPR18/1186; SPR19/0046 and SPR19/212 Determinations of the Supervisor of Records (Supervisor) (September 27, 2016; March 26, 2018; May 4, 2018; August 17, 2018; January 16, 2019 and February 13, 2019). On June 8, 2018, in two separate transmissions via email, the City provided records for "Student Activity Accounts" for school years 2010-2011; 2011-2012; 2012-2013; 2013-2014; 2014-2015; 2015-2016; 2016-2017; and 2017-2018. However, Ms. Ortiz continues to assert that the City has not provided all the records responsive to her request.

Hannah Pappenheim SPR19/509 Page 3 March 21, 2019 In its January 28th response, the City states, "[a]fter conferring with school department employees, the attached records were located. I believe that these records, combined with those already produced, are all the Student Activity Account documents responsive to your request." After receipt of the City's January 28th response and transmittal of records, Ms. Ortiz sent a January 28th email to the City inquiring whether she was to receive any responses for the "Student Activity Accounts" of school years 2010-2011; 2011-2012; 2012-2013; and 2013-2014 pertaining to specifically-named schools. When she did not receive a response to her email asking for clarification, Ms. Ortiz petitioned the Supervisor, and SPR19/212 was opened. It is Ms. Ortiz's contention, for example, that where the City had an audit conducted of the High School's Student Activity Accounts, the actual records would have been reviewed in conducting the audit. Again, Ms. Ortiz asks that the City clarify what responsive records they have regarding her January 28th list of school years and particular schools' "Student Activity Accounts" from 2010-2018. In my February 13, 2019 determination, I encouraged the parties to work together in order to identify the records sought that have not been provided, including identifying the City's schools in each of the school years that may have the records responsive to Ms. Ortiz's requests and further inquiries. The City's March 6, 2019 response to SPRJS/1186; SPR19/0046 and SPR19/212 In your March 6th response, you indicate that the City sent a September 11, 2018 email clarifying that Ms. Ortiz received all the records in your possession. You state, "[ o ]n January 28, 2019, I responded to the appeals, attaching supplemental records for the further inquire list. These supplemental records, combined with those originally provided to [Ms. Ortiz] on June 8, 2018, were then all the responsive records in my possession for the years 2010-2018." Regarding any further records pertaining to school years 2010-2014, you assert, "the City had already provided [Ms. Ortiz] records for those years, and they were not included in the further inquire list in the Supervisor's letters on August 17, 2018 and January 16, 2018. As such, it is the City's position that it has provided a full response to the Supervisor's above-referenced orders." However, it is Ms. Ortiz's contention that the City did not provide all the records responsive to her request for the "Student Activity Accounts" (schedule of activities; schedule of receipts and disbursements) for all City schools for years 2010-2018. Records in its possession, custody and control; Records management and retention A records access officer (RAO) must explain whether it possesses any other responsive records and use their knowledge of the records to facilitate providing any additional responsive records. G. L. c. 66, § 1O (b )(vii). The duty to comply with requests for records extends to those

Hannah Pappenheim SPR19/509 Page 4 March 21, 2019 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, § lO(a)(ii). In light of the issues raised by Ms. Ortiz's March 6th appeal regarding the existence of responsive records, and despite the City's responses, I find it is still unclear why additional records have not been provided; specifically, the City must explain whether the responsive records existed and were destroyed, or whether the records did not initially exist. See G. L. c. 66, § lO(a)(ii), (b)(ii). If such records were destroyed, the City must demonstrate whether it followed proper records retention protocol. Please note, all municipalities and agencies must institute safeguards to ensure that all records are retained in accordance with both applicable law as well as the retention schedules promulgated by this office. G. L. c. 66, §§ 1, 8, 13, 15. I advise the City to review the Records Retention Manual, available online at www.sec.state.ma. us/arc/arcrmu/rmuidex.htm. Conclusion Accordingly, the City is ordered to provide Ms. Ortiz with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within 10 business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Sincerely, Rebecca S. Murray Supervisor of Records cc: Laura Ortiz