Laura H. Ortiz v. Lowell, City of - Law Department (SPR 20231286)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 27, 2023 SPR23/1286 John Pyers Records Access Officer City of Lowell License Commission, Law Department City Hall 375 Merrimack Street, 3rd Floor Lowell, MA 01852 Dear Mr. Pyers: I have received the petition of Laura Ortiz appealing the response of the City of Lowell (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 2, 2023, Ms. Ortiz requested “a copy of any Waivers that were signed by the City of Lowell with either the Commonwealth of Massachusetts and/or the Massachusetts Attorney General Offices, or the United States Department of Justice, and related to [a list of specific] MDL lawsuits against pharmaceutical companies.” The City responded on May 2, and May 15, 2023, indicating it does not currently have access to the responsive records. Unsatisfied with the City’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). 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. 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

John Pyers SPR23/1286 Page 2 June 27, 2023 If there are any fees associated with a response, a written good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The City’s May 2nd and May 15th Responses In its May 2, 2023 response, the City states the following: Please be advised that all City of Lowell information technologies are currently unavailable due to matters beyond our control. All information storage (therefore all records) are unavailable at this time, and we are anticipating that records may not be available through at least May 8th. In its May 15, 2023, response, the City states: [T]he City experienced a cyber-related incident on April 24, 2023. As a result, we currently do not have access to our network. Unfortunately, we do not know when we will have access to our files, but please be assured that once we do, we will look through our files for any documents responsive to this request. Please be advised that G. L. c. 66, § 10(b) provides, in pertinent part, that if the magnitude or difficulty of a request unduly burdens the other responsibilities of the agency or municipality such that the agency or municipality cannot provide records within 10 business days, the agency or municipality must inform the requestor in writing within 10 business days. With respect to the timeframe to produce responsive records, the written response shall: identify a reasonable timeframe in which the agency or municipality shall produce the public records sought; provided, that ... for a municipality the timeframe shall not exceed 25 business days following the initial receipt of the request for public records; and provided further, that the requestor may voluntarily agree to a response date beyond the timeframes set forth herein. G. L. c. 66, § 10(b)(vi). Where Ms. Ortiz submitted her request on May 2, 2023, and the City has not provided responsive records, I find the City has not met its burden in responding to the request in accordance with G. L. c. 66, § 10(b). Consequently, the City must provide an estimated date as to when it intends to complete the search and provide the responsive records. See G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). To the extent possible, the City must provide responsive records on a rolling basis. Conclusion Accordingly, the City 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

John Pyers SPR23/1286 Page 3 June 27, 2023 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 the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Laura Ortiz