Laura H. Ortiz v. Lowell, City of - City Solicitor (SPR 20190519)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 22, 2019 SPR19/519 Hannah Pappenheim, Esq. Assistant City Solicitor City of Lowell Law Department 375 Merrimack Street, 3rd Floor Lowell, MA 01852-5909 Dear Attorney Pappenheim: I have received the petition of Laura H. 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). Specifically, January 29, 2019, Ms. Ortiz requested an opportunity to inspect or copies of: "Updated: DPW School Dude Report regarding requested repairs for ALL Lowell Public Schools - from October 19, 2018-Present day date of January 29, 2019 and/or up to the date you furnish these public records Note: AU Lowell Public Schools and also public records in the Electronic Format ofExcel/CSV. Lastly, in the event that you did make a change in record keeping from utilizing the School Dude System to any [other] program, then [whatever] ever that new computer programing entering system you input these maintenance records into is called, please allow that applicable in this request to obtain the exact records in these same parameters." Prior appeal The responsive report in the requested Excel/CSV format was the subject of a prior appeal. See SPR19/342 Determination of the Supervisor of Records (Supervisor) (February 22, 2019). Initially, the City provided Ms. Ortiz with the records on a compact disc in Adobe.pdf format, rather than the requested Excel/CSV format. After appeal SPRl 9/342 was opened, the City provided the records in the requested format, and on February 20th Ms. Ortiz informed this office that she was satisfied with the City's response and asked that this office close her appeal. Upon review of the report provided by the City, Ms. Ortiz petitioned the Supervisor, objecting to the City's redaction of certain information pursuant to Exemption (n) of the Public Records Law. As a result, the current appeal was opened. 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, Esq. SPR19/519 Page2 March 22, 2019 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, § lOA(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 town 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, § 1 O(b )(iv) (written response must "identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons fot such withholding, including the specific exemption or exemptions upon which the withholding is based ... "); 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). The City's February 11, 2019 response In its February 11th response that accompanied the records in Adobe.pdf format, the City asserts, "[d]oor numbers, door location descriptors (i.e. a room number, room name, door name, or specific location), and broken window descriptions that identify a particular door or window were redacted where the log lists the request as incomplete. Disclosure of the location of faulty doors or windows poses a threat to public safety." Exemption (n) Exemption (n) applies to: records, including, but not limited to, blueprints, plans, policies, procedures and schematic drawings, which relate to internal layout and structural elements, security measures, emergency preparedness, threat or vulnerability assessments, or any other records relating to the security or safety of persons or buildings, structures, facilities, utilities, transportation, cyber security or other infrastructure located within the commonwealth, the disclosure of which, in the reasonable judgment of the record custodian, subject to review by the supervisor of public records under subsection ( c) of section 10 of chapter 66, is likely to jeopardize public safety or cyber security. Exemption (n) allows for the withholding of certain records which if released would jeopardize public safety. The first prong of Exemption (n) examines "whether, and to what degree, the record sought resembles the records listed as examples in the statute;" specifically, the "inquiry is whether, and to what degree, the record is one a terrorist would find useful to maximize damage." PETA, 477 Mass. at 289-90. The second prong of Exemption (n) examines "the factual and contextual support for the

Hannah Pappenheim, Esq. SPR19/519 Page 3 March 22, 2019 proposition that disclosure of the record is 'likely to jeopardize public safety."' Id. at 289-90. The PETA decision further provides that "[b ]ecause the records custodian must exercise 'reasonable judgment' in making that determination, the primary focus on review is whether the custodian has provided sufficient factual heft for the supervisor of public records or the reviewing court to conclude that a reasonable person would agree with the custodian's determination given the context of the particular case." PETA, at 289-90. PETA also provides that "[t]hese two prongs of exemption (n) must be analyzed together, because there is an inverse correlation between them. That is, the more the record sought resembles the records enumerated in exemption (n), the lower the custodian's burden in demonstrating 'reasonable judgment' and vice versa." Id., at 290. Ms. Ortiz has indicated that the City may have provided the public with some of the same information in rm-redacted format on its website. Ms. Ortiz has also contended that the City, in providing her with the initial Adobe.pdf version and subsequently in the requested format of Excel/CSV, that the City's redactions were inconsistent. Finally, Ms. Ortiz asserts that documents were overly redacted because where the maintenance issue has been resolved "the City should not be entitled to [r]edact anything in that case as there is no present 'safety' issue remaining because that exemption allowance for such was resolved per their own records based on their closed/completion dates." It is unclear whether the redacted information has been made public by the City elsewhere. Additionally, it is uncertain whether the City has redacted maintenance issues that have been resolved. The City must provide a supplemental response to clarify its position in redacting information from the reports run on February 8th and provided to Ms. Ortiz. Conclusion Accordingly, the City is to provide Ms. Ortiz with a response 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, ~.~ Supervisor of Records cc: Laura H. Ortiz Adam R. LaGrassa, Esq.