Laura H. Ortiz v. Lowell, City of - Law Department (SPR 20231733)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 10, 2023 SPR23/1733 John Pyers Records Access Officer City of Lowell – Law Department 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 June 27, 2023, Ms. Ortiz requested the following records from the period of May 15 to June 27, 2023: [1.] Any Notice(s) to Vacate issued by the City of Lowell and/or any Department served, posted or placed near or within any homelessness camp (not limited to the encampment off of First Street Boulevard) after “alleged criminal activity (including weapons and/or drugs)” and the City of Lowell conducting “sweep- type actions” to clear encampments[;] [2.] Any Notice(s) to Vacate or Seizure/Forfeiture or Fines or other issued by the City of Lowell and/or any Department served, posted or placed to any landlord or property owner or upon their property address after “alleged criminal activity (including weapons and/or drugs)” occurred at their property address in the City of Lowell[;] [3.] Any Notice(s) for Personal Belonging and Property Retrievals or other served, posted or placed or given to the Homelessness persons or posted on City Property or other issued by the City of Lowell and/or any Department regarding where they can recover their personal property and belongings after “alleged criminal activity (including weapons and/or drugs)” and the City of Lowell conducting “sweep-type actions” to clear encampments (not limited to the encampment off of First Street Boulevard)[.] 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 SPR23/1733 Page 2 August 10, 2023 Previous Appeal This request was the subject of a previous appeal. See SPR23/1666 Determination of the Supervisor of Records (July 25, 2023). In my July 25th determination, I closed SPR23/1666 in light of the City providing Ms. Ortiz with a written response on July 20, 2023. 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. The City’s July 20th Response In its July 20, 2023 response, the City provides one responsive record. In her appeal petition, Ms. Ortiz contends that the City “failed to produce the rest of the responsive records to the Part [1].” Additionally, she contends that the City “refused to even respond at all to Parts [2] or Parts [3] nor did it give any responsive records.” Records in Existence; Possession, Custody, or Control 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). Further, under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). In a telephone conversation with this office on August 9, 2023, a representative for the City confirmed that the City does not possess any additional records responsive to this request. Conclusion Where the City confirmed that it does not possess additional records responsive to Ms.

John Pyers SPR23/1733 Page 3 August 10, 2023 Ortiz’s request, I will now consider this administrative appeal closed. Sincerely, Manza Arthur Supervisor of Records cc: Laura Ortiz