Laura H. Ortiz v. Lynn, City of - Office of the City Solicitor (SPR 20220175)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 9, 2022 SPR22/0175 James P. Lamanna, Esq. Assistant City Solicitor City of Lynn Lynn City Hall 3 City Hall Square; Room 406 Lynn, MA 01901 Dear Attorney Lamanna: I have received the petition of Laura Ortiz appealing the response of the City of Lynn (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On December 22, 2021, Ms. Ortiz requested the following: [1] [A]ll inspection records related to wholesale vendors Revolution Foods and/or Garelick LLC regarding food, meals, snacks or milk products; as well as Chartwells management practices and/or City of Lynn Maintenance issues[.] [E]mails, letters or notes sent: intra City, intra departments. . . . For School Years 2021-2022; 2020-2021; 2019-2020 and 2018-2019 . . . [2] [A]ll inspection reports related to wholesale vendors Revolution Foods and/or Garelick LLC regarding food, meals, snacks or milk products; as well as Chartwells management practices and/or City of Lynn Maintenance issues . . . For School Years 2021-2022; 2020-2021; 2019-2020 and 2018-201 . . . [3] [A]ll correspondence between the City of Lynn and the Lynn School Department for: ANY records that were produced that were responsive in any way (regardless the departments from the City of Lynn) to our October 18th (or if considered 19th) public records requests as well as any narrowing scope records requests we made or new ones etc to Lynn Public Schools since then so October 18 2021-December 22, 2021 dates. [E]mails, letters, notes and all attached records sent to/from. . . . Previous appeal This request was the subject of a previous appeal. See SPR22/0106 Determination of the Supervisor of Records (January 25, 2022). SPR22/0106 was closed after the City provided Ms. 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

James P. Lamanna, Esq. SPR22/0175 Page 2 February 9, 2022 Ortiz with a response on January 25, 2022. Unsatisfied with the City’s response, Ms. Ortiz petitioned this office and this appeal, SPR22/0175, was opened as a result. 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 agency or municipality 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 custodian must provide the responsive records. The City’s January 25th response Items 1 and 2 In its January 25, 2022 response, the City indicates that “[t]here exists only inspectional reports relating to the entire cafeteria operation of individual schools. The inspections reports are not broken down into individual food products or individual suppliers. The records are maintained in a filing system based upon the address of the school. The City would be glad to provide Ms. Ortiz the inspection reports for any years (or months) she desires (and requests). Should Ms. Ortiz only wish copies of inspection records relating to Revolution Foods and Garelick LLC, City officials will be required to review thousands of pages of inspection reports

James P. Lamanna, Esq. SPR22/0175 Page 3 February 9, 2022 to separate out records relating to these two entities. . . . [T]he only way that the request can be limited to two food suppliers is to review each document individually. This will undoubtedly require significant man hours which the City reserves the right to require a payment therefore.” This office encourages Ms. Ortiz and the City to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(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 municipality to produce the records sought more efficiently and affordably). 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(a)(ii). Item 3 Regarding Item 3, the City indicated it does possess a limited number of emails regarding the school lunch contract. The City stated in its response, “attached to this email the City has produced copies of the same. The Lynn Public School Department may possess other emails with such a subject heading. However, a request would need to be forwarded to the Lynn Public School Department.” 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). It is unclear whether the Lynn Public School Department possesses additional records responsive to this request. 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 ten (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