Mikayla Heiss v. Lowell, City of - City Solicitor (SPR 20200353)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public .Records Division Rebecca S. Murray Supervisor ofR ecords March 9, 2020 SPR20/0353 Stacie Moeser, Esq. Assistant City Solicitor City of Lowell 375 Merrimack Street,# 3 Lowell, MA 01852 Dear Attorney Moeser: I have received the petition of Mikayla Heiss appealing the response of the City of Lowell (City) to a request for public records. G. L. c. 66, § IOA; see also 950 C.M.R. 32.08(1). Specifically, on February 10, 2020, Ms. Heiss requested" ... all calls to the police emergency line, or 911, from January 1, 2016 to present." The City responded on February 21, 2020, denying the public records request. Unsatisfied with the City's response, Ms. Heiss petitioned this office and this appeal, SPR20/0353, 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, § IOA(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, § lO(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, § 1O (b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. 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

Stacie Moeser, Esq. SPR20/0353 Page 2 March 9, 2020 The City's February 2JS1 response In its Febrnary 21, 2020 response, the City indicates that upon receiving the request, it " ... contacted Ms. Heiss ... to explain that her request was infeasible and to provide her the opportunity to narrow the request. ... " The City explains that it informed Ms. Heiss that" ... there are approximately 25,000 emergency/911 calls to the City each year. Since [Ms. Heiss] is seeking the written data from the calls, this would require hundreds of hours of employee time to identify, compile, and produce these records, as well as to redact the protected information necessarily contained therein. See G. L. c. 4, § 7(26)(a),(c),(f) and G. L. c. 66, § lOB." The City posits that should it attempt to comply with the request, the cost " ... would reach in excess of $20,000 for over 800 hours of work, based on the statutory rate of $25 an hour beyond the two included hours. This is in addition to any cost of materials required for production. See G. L. c. 66, §lO(d)." The City indicates that Ms. Heiss narrowed her request to records that mention "homeless" in the calls. The City states that it explained to Ms. Heiss that" ... this information is not consistently captured in the 911 call reports. It is therefore not in the possession, custody, or control of the City ...." The City indicates that it offered to connect Ms. Heiss with numerous experts within the City to acquire accurate information. The City further notes that Ms. Heiss prefers the "raw data" as opposed to exported information from its 911 system. The City explains that it informed Ms. Heiss " ... that the City uses Larimore software, accessible only by law enforcement, and that records are solely available through export of data." As such, the City directed her to contact Larimore Associates for any technical questions. The City claims that based on the foregoing, it is therefore denying the public records request as it has exceeded its legal responsibilities under the Public Records Law in its efforts to assist Ms. Heiss with experts throughout the City. Based on the appeal petition, I find the basis of Ms. Heiss' appeal is unclear. In the City's response, it explains its efforts to assist Ms. Heiss in narrowing her request, and suggests an estimated cost should it proceed to comply with Ms. Heiss' original request. Accordingly, it is unclear what Ms. Heiss is objecting to, neither, has she explained the basis of this objection. See 950 C.M.R. 32.08(1)(f) (all petitions for appeal shall be in writing and shall specifically describe the nature of the requestor's objections to the response or failure to issue a timely response). Ms. Heiss may wish to clarify the nature of the objections. Further, in light of the above, where the City has explained its efforts to assist Ms. Heiss in narrowing and or modifying her request, this office encourages Ms. Heiss and the City to continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 1O (b )(vii) ( a municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency to produce records sought more efficiently and affordably). Ms. Heiss may wish to narrow her request to include shorter time periods, specific topics, or emergency/non emergency calls. G. L. c. 66, § lO(a)(i).

Stacie Moeser, Esq. SPR20/0353 Page 3 March 9, 2020 Conclusion If unresolved issues remain, Ms. Heiss may appeal the substantive nature of the City's response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Mikayla Heiss