Laura H. Ortiz v. Lynn, City of - Public Schools (SPR 20213067)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 6, 2021 SPR21/3067 Charles Gallo, J.D. Compliance Officer Lynn Public Schools 100 Bennett Street Lynn, MA 01905 Dear Mr. Gallo: I have received the petition of Laura Ortiz appealing the response of the Lynn Public Schools (School) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 18, 2021, Ms. Ortiz requested 11 categories of records regarding food services from 2018 to 2021. The School provided initial responses emailed on October 27, 2021 and October 28, 2021. On November 1, 2021, the School provided Ms. Ortiz with a final response, which included certain responsive records. Unsatisfied with the School’s response, Ms. Ortiz petitioned this office and this appeal, SPR21/3067, was opened as a result. While this appeal was pending, the School provided a supplemental response on November 22, 2021. This appeal pertains to Items 1, 2, 7, 8, and 9 of the request. For Items 1, 2, 7, 8, and 9, Ms. Ortiz requested: [1] Copy of all Contracts between City of Lynn and/or Lynn Public School District/other with Chartwells, and/or Chartwells K12 Note: For School Years 2021-2022, 2020-2021. 2019-2020 and 2018-2019 [2] Copy of all Contracts between City of Lynn and/or Lynn Public School District/other with Chartwells, and/or Chartwells K12 Partner Revolution Foods (who supplies the meals for any Lynn Public School) Note: For School Years 2021-2022, 2020-2021. 2019-2020 and 2018-2019 [7] Copy of any formal food complaint(s) against Chartwells and/or Chartwells K12 and/or their Partner Revolution Foods regarding ANY issues with the food services they provided and/or that was raised by LPS staff, students and/ or parents. That was served to the City of Lynn, and/or the Lynn Public School District/other and/or the Food Services Department and/or that came to the attention of the City/School District that was sent from the USDA/other against Lynn Public Schools. Note: For School Years 2021-2022, 2020-2021. 2019-2020 and 2018-2019. . . . 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

Charles Gallo, J.D. SPR21/3067 Page 2 December 6, 2021 [8] Copy of any formal food complaint(s) against Lynn Public School District and/or the City of Lynn regarding Chartwells and/or Chartwells K12 and/or their Partner Revolution Foods regarding ANY issues with the food services they provided and/or that was raised by LPS staff, students and/or parents. That was served to the City of Lynn, and/or the Lynn Public School District/ other and/or the Food Services Department and/or that came to the attention of the City/School District that was sent from the USDA/other. Note: For School Years 2021-2022, 2020-2021. 2019-2020 and 2018-2019. [9] Policies of City of Lynn, and/or Lynn Public School District/other and/or Food Services Department or Individual Lynn Public Schools in regards to storage/service of any Chartwells and/or Chartwells K12 and/or their Partner Revolution Food products served to LPS staff and/or students. . . . . Ms. Ortiz’s appeal to Items 3, 4, 5, 6, and 10 of her October 18th request was addressed in a previous appeal. See SPR21/2939 Determination of the Supervisor of Records (November 19, 2021). Please refer to the determination in SPR21/2939 for analysis of this issue. Purpose of request; identity of requestor Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Ms. Ortiz’s purpose in making the request has no bearing on the public status of any existing responsive records. 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). 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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records

Charles Gallo, J.D. SPR21/3067 Page 3 December 6, 2021 custodian must provide the responsive records. The School’s November 1st and November 22nd responses In its November 1, 2021 response, the School provided certain records and indicated that it did not possess records responsive to other portions of Ms. Ortiz’s request. Items 1 and 2 For Items 1 and 2, the School states, “. . . possession, custody, or control of any contracts would be with the City of Lynn. In order to assist, the Lynn Public Schools Records Access Officer advised you on 10/19 that you can make a Public Records Request to the City of Lynn via the following website. In order to further assist, the Lynn Public Schools Records Access Officer alerted the City of Lynn that a request from you may be forthcoming.” Items 7 and 8 In response to Items 7 and 8, the School indicates that it “. . . does not possess any records that are entitled or may be considered ‘formal food complaint(s)’.” Item 9 Regarding the above Item, the School enclosed copies of policies in its possession. In her appeal petition, Ms. Ortiz identifies certain records that may be in the possession of the School that are responsive to her request. In the School’s November 22, 2021 supplemental response, the School reiterates its November 1st response and asserts that all records in its possession have been provided. The duty to comply with requests for records extends to those 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, § 10(b)(ii). Also, the duty to comply with requests for records extends to identifying the agency or municipality that may be in possession, custody, or control of the public record sought, if known. See G. L. c. 66, § 10(b)(iii). In light of the School’s responses, I find it has met its burden under G. L. c. 66, § 10(b)(ii) and G. L. c. 66, § 10(b)(iii), in providing records in its possession, custody, or control. It is my understanding the City of Lynn will be providing a response with respect to a portion of the request. Public records requests; petitions to Supervisor of Records In her appeal petition, Ms. Ortiz appears to include a request that was not in her original October 18th request related to the above Items. Ms. Ortiz claims records responsive to the following request were not provided:

Charles Gallo, J.D. SPR21/3067 Page 4 December 6, 2021 A copy of any records requests and responses to/from (. . . @gmail.com) including request made via the Lynn Public Schools website for records requests, including all attached documents by the Lynn Public Schools (October 18, 2021- November 15, 2021) . . .” Ms. Ortiz is reminded that a requestor may petition the Supervisor of Records only after a written request has been made to the records access officer (RAO) of the governmental entity that creates or receives the records. 950 C.M.R. 32.01(1). Where the request for subsequent records was not made directly to the School’s RAO, I decline to opine on that matter. If Ms. Ortiz would like to obtain copies of these records, she is advised that she should make a separate public records request to the School’s RAO. Ms. Ortiz may then appeal the substantive nature of the School’s response within ninety calendar days. See 950 C.M.R. 32.08(1). Conclusion Accordingly, I will consider this administrative appeal closed. If Ms. Ortiz is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 10(b) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Rebecca S. Murray Supervisor of Records cc: Laura Ortiz