Laura H. Ortiz v. Lynn, City of - Office of the City Solicitor (SPR 20222363)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 1, 2022 SPR22/2363 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] …the investigation of text messages between officer [and] investigation report and all records submitted to the Peace Officers Standards and Training Commission; [2] …all internal affairs records for the eight officers who resigned, or were terminated, or were suspended as a result of the investigation. [3] any records that are additionally responsive and were forwarded to the Lynn Police Department from the Salem Police Department relating to [1] abd [sic] [2] [4] any subsequent released records relating to [1], [2], or [3] as of the time Lynn Police Department sends any response to us if readily available[.] 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); SPR22/1562 Determination of the Supervisor of Records (July 22, 2022); SPR22/1846 Determination of the Supervisor of Records (August 24, 2022); and SPR22/2230 Determination of Supervisor of Records (October 18, 2022). In my October 18th determination, I found that the Department provided a further response on October 18, 2022, and closed the appeal. Unsatisfied with the Department’s response, Ms. Ortiz petitioned this office and this appeal, SPR22/2363, was opened as a result. 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 SPR22/2363 Page 2 November 1, 2022 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. The Department’s October 18th response In the Department’s October 18, 2022 response, it stated regarding part four of the request that it had no further responsive records to provide. Current appeal In her current appeal, Ms. Ortiz claims that the Department’s response was inconsistent with their prior responses regarding responsive records. Specifically, Ms. Ortiz’s request for text messages from a named former officer. In the Department’s October 18, 2022 response it stated, “…The Lynn Police Department has provided Ms. Ortiz all filings with Peace Officers Standards and Training Commission regarding these 8 officers. There have been no supplemental filings with the Peace Officers Standards and Training Commission regarding any ‘investigation of text messages.’” The Department further stated, “[t]he Lynn Police Department has produced all internal affairs records for the eight officers who resigned, or were terminated, or were suspended as a result of the investigation. There have been no supplemental Internal Affairs Reports relating to the [text message] investigation.” The Department concluded, “…The Lynn Police Department possess no records that “are additionally responsive and were forwarded to the Lynn Police Department from the Salem Police Department relating to [1] and [2]. . . .The Salem Police Department did not forward any information to the Lynn Police Department that relates in any way to the investigation referenced in Requests [1] and [2]. As the City possesses no such documents, it cannot produce the records requested by Ms. Ortiz in Request Number [3]…”

Lieutenant Paul Cotter SPR22/2363 Page 3 November 1, 2022 In a prior appeal, SPR22/1846, the Department provided a response from August 31, 2022 where it stated, “[a]s you aware from prior filings with the Secretary of State’s Office by the City, it is the position of the City that all of the text messages are exempt from disclosure by exemption (c) (the so called privacy exception to the Massachusetts Public Records law).” The Department further stated, “[i]t is well settled by prior judicial court cases that records relating to drug use are exempt from the public records law.” The Department concluded, “[t]hese text messages are not contained in any personnel file of any Officer or former Officer and therefore are unaffected by recent changes to the Public Records Law enacted in 2020.” Based on the above, it is unclear if the Department possesses the requested text messages. 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). To the extent that additional records exist, they must be provided in a manner consistent with the Public Records Law. G. L. c. 66, § 10(b). The Department must clarify this. Conclusion Accordingly, the Department 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, Manza Arthur Supervisor of Records cc: Laura Ortiz James P. Lamanna, Esq.