Laura H. Ortiz v. Lynn, City of - Law Department (SPR 20222809)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 20, 2022 SPR22/2809 James P. Lamanna, Esq. Records Access Officer City of Lynn Office of the City Solicitor 3 City Hall Square, Room 406 Lynn, MA 01901 Dear Attorney Lamanna: I have received the petition of Laura H. Ortiz appealing the response of the City of Lynn (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 3, 2022, Ms. Ortiz requested the following records: [1] Copy of all Contracts, School Lunch Contracts … between City of Lynn and/ or Lynn Public School District/other with Chartwells, and/or Chartwells K12 or other applicable vendor… For School Years 2022-2023. [2] School Lunch 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) or other applicable vendor(s) … For School Years 2022-2023. On September 2, 2022, Ms. Ortiz modified her request to include numerous records regarding a named school lunch program and emails between the City and Lynn Public Schools. Prior Appeals The requested records were the subject of prior appeals. See SPR22/2209 Determination of the Supervisor of Records (October 12, 2022) and SPR22/2303 Determination of the Supervisor of Records (October 26, 2022). In my October 26th determination, I found it was unclear if the City had any further responsive records and I ordered the City to provide a further response. On November 2, 2022, the City responded. Unsatisfied with the City’s response, Ms. Ortiz petitioned this office and this appeal, SPR22/2809, 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

James P. Lamanna, Esq. SPR22/2809 Page 2 December 20, 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. Current Appeal In her current appeal, Ms. Ortiz claims that the City did not provide all responsive records. Ms. Ortiz claims that the City did not provide all responsive records regarding a named school lunch program and that the City did not provide any emails between the City and Lynn Public Schools. The City’s November 2nd response In its November 2, 2022 response, the City stated, the following: Following a search of ZIP drive folders, documents that were in the possession of the Lynn School Department and believed to have previously been provided to the requester by the Lynn School Department’s Record Access Officer were located in the possession of the City of Lynn. The Lynn School Department had provided [named attorney] with these documents so that he could prepare a report regarding complaints relative to the school lunch program. There exists no further documents responsive [t]o this request in the possession of the City of Lynn. A total of 12 attachments shall follow. In a telephone conversation on December 19, 2022, the City confirmed that all responsive records to Ms. Ortiz’s request have been provided. No Duty to Create Records Please be advised, under the Public Records Law a custodian is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d). In addition, a public employee is not required to answer questions, or do research, or create documents in response to

James P. Lamanna, Esq. SPR22/2809 Page 3 December 20, 2022 questions. See 32 Op. Att’y Gen. 157, 165 (May 18, 1977). 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). Conclusion Where the City does not possess any additional records responsive to Ms. Ortiz’s request, and has no duty to create records responsive to the request, I will now 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). Sincerely, Manza Arthur Supervisor of Records cc: Laura H. Ortiz