Laura H. Ortiz v. Lowell, City of - Police Department (SPR 20230471)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 22, 2023 SPR23/0471 Jacqueline Cook Records Access Officer Lowell Police Department 50 Arcand Drive Lowell, MA 01852 Dear Ms. Cook: I have received the petition of Laura Ortiz appealing the response of the Lowell Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 3, 2023, Ms. Ortiz requested the following: [1] Any extreme temperature policy that the Department implemented this week to combat dangerous polar vortex below zero temperatures and responsive to PD interactions with the general public…[;] [2] Any policies, memos or directives regarding arresting homeless individuals during 2022/2023 winter months by any City Departments. Previous Appeal This request was the subject of a previous appeal. See SPR23/0427 Determination of the Supervisor of Records (March 9, 2023). In my March 9th determination, I closed SPR23/0427 in light of the Department providing a response to Ms. Ortiz on March 6, 2023. Unsatisfied with the Department’s response, Ms. Ortiz appealed, and this case 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 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). 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

Jacqueline Cook SPR23/0471 Page 2 March 22, 2023 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. Att’y 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 appeal petition, Ms. Ortiz contends that the Department is “withholding records that exist,” and in support of her argument, states, among other things, that “[h]omelessness citizens told advocates on how they were approached negatively while rough sleeping in extreme temperatures outside this year and prior multiple times.” The Department’s Responses In its March 6, 2023 response, the Department states that it “has no responsive documents.” In a supplemental response provided to Ms. Ortiz and this office on March 17, 2023, while this appeal was pending, the Department provides a copy of “a protocol ... from 2013” and explains that “this is the only document in [the Department’s] care and custody regarding homelessness.” In its March 17th response, the Department reiterates that “the Lowell Police Department has no responsive documents of what was requested.” Please be advised that 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). Additionally, in accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). Conclusion In this case, the Department used its superior knowledge of the records to provide Ms. Ortiz with a record potentially responsive to her request. Where the Department has confirmed that it has no additional responsive records, I will 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)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies).

Jacqueline Cook SPR23/0471 Page 3 March 22, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Laura Ortiz