Laura H. Ortiz v. Lynn, City of - Police Department (SPR 20221846)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 24, 2022 SPR22/1846 Lieutenant Paul Cotter Records Department Lynn Police Department 300 Washington Street Lynn, MA 01902 Dear Lieutenant Cotter: I have received the petition of Laura Ortiz appealing the response of the Lynn Police Department (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 25, 2022, Ms. Ortiz requested the following records: [1] All of the Department’s responses…as well as any subsequent records released in regard to SPR22/0355, as well as [named individual] public records requests[;] [2] All requests and responsive records related to [named individual] January 17, 2022 public records requests as well as SPR22/0355 record produced and responsive to…[.] Prior Appeals The requested records were the subject of prior appeals. See SPR22/0638 Determination of the Supervisor of Records (March 30, 2022); SPR22/1350 Determination of the Supervisor of Records (June 24, 2022); and SPR22/1562 Determination of the Supervisor of Records (July 22, 2022). In my July 22nd determination, I ordered the Department to provide a further response to Ms. Ortiz. On August 5, 2022, the Department provided a response to Ms. Ortiz. Unsatisfied with the Department’s response, Ms. Ortiz petitioned this office and this appeal, SPR22/1846, 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 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

Lieutenant Paul Cotter SPR22/1846 Page 2 August 24, 2022 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. Fee estimate – municipalities A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.05) per page may be assessed for a black and white single or double-sided photocopy of a public record. G. L. c. 66, § 10(d)(i). Municipalities may not assess a fee for the first (two) 2 hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested unless the municipality has 20,000 people or less. G. L. c. 66, § 10(d)(iii). Where appropriate, municipalities may include as part of the fee an hourly rate equal to or less than the hourly rate attributed to the lowest paid employee who has the necessary skill required to search for, compile, segregate, redact or reproduce a record requested, but the fee shall not be more than $25 per hour. Id. However, municipalities may charge more than $25 per hour if such rate is approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv). A fee shall not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv). See G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4). The Department’s responses In its July 5, 2022 response, the Department stated, “… [t]he City would require a prepayment in the amount of $2,000.00 before undertaking such a search, segregation and redaction endeavor. This constitutes a good faith estimate as to the cost of reviewing these personal cell phone records and may not be ultimately accurate.” In its August 5, 2022, response, regarding the time line of the fee estimate, the Department states, “[a]t the time that Ms. Ortiz’s request was submitted to the Lynn Police Department, I was responding to an identical appeal for the same records by a [named person]. The City produced the same documents to [named person] that were provided to Ms. Ortiz and that appeal has been resolved with no complaints that the text messages in their entirety were not produced. Reviewing records between myself and Ms. Ortiz, there appears to have been no

Lieutenant Paul Cotter SPR22/1846 Page 3 August 24, 2022 contact within ten days as required by law. The City admits that it did not file a timely request for the imposition of fees.” G. L. c. 66, § 10(e) G. L. c. 66, § 10(e) provides that “[a] records access officer shall not charge a fee for a public record unless the records access officer responded to the requestor within 10 business days under subsection (b).” In this case, where Ms. Ortiz submitted a request on February 22, 2022, and the Department did not provide a response until April 4, 2022, and a fee estimate on July 5, 2022, I find the Department has not met its burden to demonstrate that its April 4, 2022 response was in compliance with G. L. c. 66, § 10(b). Accordingly, the Department may not charge a fee for public records under G. L. c. 66, § 10(e). This office encourages Ms. Ortiz and the Department to continue communicating 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). Conclusion Accordingly, the Department is ordered to provide Ms. Ortiz with a response to the request, 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, Manza Arthur Supervisor of Records cc: Laura Ortiz James P. Lamanna, Esq.