Laura H. Ortiz v. Lowell, City of - City Solicitor (SPR 20211468)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 17, 2021 SPR21/1468 John R. Hucksam Jr., Esq. City of Lowell Law Department 375 Merrimack Street 3rd Floor Lowell, MA 01852 Dear Attorney Hucksam: 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, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on two separate occasions, June 1, 2019 and October 2, 2019, Ms. Ortiz requested records related to the EOY report for the 2018-2019 school year and Building Staff Profiles with information regarding school nurses for each Lowell Public School District’s school. Previous appeals The requested records were the subject of previous appeals. See SPR20/0155 Determination of the Supervisor of Records (February 11, 2020); SPR19/2133 Determination of the Supervisor of Records (October 31, 2019); SPR 20/0285 Determination of the Supervisor of Records (February 28, 2020); SPR 21/0071 Determination of the Supervisor of Records (January 26, 2021). In my January 26th determination, I found the City had not met its burden to redact the records pursuant to Exemption (c). Further, I found the City must clarify if the record provided is the EOY Excel record, and not a new Excel record. The City provided a response on June 10, 2021. Unsatisfied with the City’s response, Ms. Ortiz petitioned this office and appeal SPR21/1468 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, § 10A (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). 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

John R. Hucksam, Jr., Esq. SPR21/1468 Page 2 June 17, 2021 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, § 10(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. Current Appeal In a its response sent on June 10, 2021, the City states “[a]ttached please find copy of 2018-2019 End of Year (EOY) Report in which all school names are included and the number of students in any category of medical condition is redacted (as shown by blank cell) only where the number is less than 5. This is a good faith attempt to provide the public record sought by Ms. Ortiz” In her appeal, Ms. Ortiz states “[w]e immediately Appeal, as there is a completely NEW record. The original would have the black cell redaction CLEARLY showing where the students counts were and at which school (not this cover the redaction cell box up by on purpose making it white to hide the redactions). The agreement between the City of Lowell and us concerned citizens over redactions was made in good faith, because when using the redaction black cell, it does not show whether 1, 2, 3 or 4 are there so NO student whatsoever would EVER be identified including at each school, so this is simply a way for the City of Lowell to obstruct access to this EOY records by simply creating a new one. We will accept nothing less than this ORIGINAL EOY record with the black redaction box on the ORIGINAL excel record and not in addition this newly created pdf electronic record we asked for the original which again is in EXCEL.” Preferred Format A records access officer shall, to the extent feasible, provide public records to a requestor in electronic format unless the record is not available in electronic form or the requestor does not have the ability to receive or access the records in electronic format and if feasible, in the requesters preferred format. In the absence of a preferred format, the records shall be provided in a searchable machine-readable form. See 950 C.M.R. 32.04(5)(d). In light of Ms. Ortiz’s appeal, I find the City must clarify if the record provided is the EOY Excel record, and not a new Excel record. Conclusion Accordingly, the City is ordered to provide Ms. Ortiz with said response within ten (10) business days. It is preferable to send an electronic copy of this response to this office at

John R. Hucksam, Jr., Esq. SPR21/1468 Page 3 June 17, 2021 pre@sec.state.ma.us. Ms. Ortiz may appeal the substantive nature of the City’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Laura Ortiz