Laura H. Ortiz v. Lynn, City of - Office of the City Solicitor (SPR 20222872)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 22, 2022 SPR22/2636; SPR22/2872 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 requesting reconsideration of my December 1, 2022, determination pertaining to a request to the Lynn Police Department (Department). 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); SPR22/2230 Determination of Supervisor of Records (October 18, 2022); SPR22/2363 Determination of Supervisor of Records (November 1, 2022) and SPR22/2636 Determination of the Supervisor of Records (December 1, 2022). In my December 1st determination, I found that Ms. Ortiz’s appeal was unclear and I 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 SPR22/2636; SPR22/2872 Page 2 December 22, 2022 directed Ms. Ortiz’s to clarify the basis of her appeal. In an email received on December 2, 2022, Ms. Ortiz requests that I reconsider my previous determination and clarified her request. 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. Reconsideration request In her December 2, 2022 email, Ms. Ortiz clarified that the records she was seeking were the text messages responsive to request number 3. Ms. Ortiz clarified that she sought records sent to the Department from the Essex District Attorney’s office. Current appeal – SPR22/2872 Following the December 1st determination, the Department provided a response to Ms. Ortiz on December 1, 2022. Unsatisfied with the Department’s response, Ms. Ortiz petitioned this office and this appeal, SPR22/2872, was opened as a result. In her current appeal, Ms. Ortiz suggests that the Department has records responsive to her request but has not produced them. The Department’s December 1st response In the Department’s December 1, 2022 response, it addresses Ms. Ortiz’s appeal before her request was clarified stating the following: The [Department] has produced all documents in its possession responsive to Requests 1 and 2. There exists no documents responsive to Request Number 4 as the investigation was closed as of the date the request was submitted to the City of Lynn Police Department. Please be advised that neither the City of Lynn nor the Lynn Police Department have records that were forwarded to the Lynn Police Department from the

Lieutenant Paul Cotter SPR22/2636; SPR22/2872 Page 3 December 22, 2022 Salem Police Department relating to [Requests] [1] and [2] and thus have no records in its possession responsive to Request Number 3. The Department indicates that if Ms. Ortiz seeks records forwarded to the Department from the Essex County District Attorney’s Office, those records are exempt, and states: The [Department] has informed Ms. Ortiz that it does possess documents responsive to Requests [1] and [2] forwarded to the Lynn Police Department from the Essex County District Attorney’s Office [and not the Salem Police Department as sought in her actual request]. The [Department] has indicated to Ms. Ortiz that the majority of the records provided by an entity not referenced in the February 25 public records request are exempt from disclosure by the Massachusetts Public Records Law Privacy Exemption. Based on the foregoing, and given that Ms. Ortiz has clarified the records she is seeking, it is unclear why the Department has not provided the responsive records to Ms. Ortiz. Also, the Department has not provided information regarding what records it possesses and why such records are likely to contain exempt information. Burden of Specificity; Segregable Portions The Department has not met its burden of specificity to withhold the requested records. Pursuant to the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. G. L. c. 66, § 10(b)(iv). The written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based.” G. L. c. 66, § 10(b)(iv); see Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The Department has not identified any of the records, categories of records, or portions of records in its possession that it intends to withhold from disclosure. Please be advised, any nonexempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Therefore, the Department must identify any records it has in its possession that it is withholding, as well as provide the specific reasons for such withholding. Conclusion Accordingly, the Department is ordered to provide Ms. Ortiz with a response to her request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten 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.

Lieutenant Paul Cotter SPR22/2636; SPR22/2872 Page 4 December 22, 2022 Sincerely, Manza Arthur Supervisor of Records cc: Laura Ortiz