Hector Montalvo v. Lowell, City of - Police Department (SPR 20232056)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 12, 2023 SPR23/2056 Jacqueline Cook Keeper of Records Lowell Police Department 50 Arcand Drive Lowell, MA 01852 Dear Ms. Cook: I have received the petition of Hector Montalvo appealing the nonresponse of the Lowell Police Department (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 20, 2023, Mr. Montalvo requested, “any and all department memos, outgoing emails, referencing [a named individual], and or [a specified address] from the city manager or superintendent directive to all public servants.” The Department provided responses on June 26, 2023 and July 26, 2023. Unsatisfied with the responses, Mr. Montalvo petitioned this office and this appeal, SPR23/2056, 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, § l0A(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. 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 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 SPR23/2056 Page 2 September 12, 2023 custodian must provide the responsive records. The Department’s June 26th and July 26th Responses In its June 26, 2023 response, the Department stated, “[t]his matter has been forwarded to the departments who may have records responsive to this request. Please be advised that most City of Lowell information technologies are currently unavailable due to matters beyond our control. Most information storage (therefore most records) are unavailable at this time, and we are anticipating that records may not be available for another few weeks.” In its July 26, 2023 response, the Department notified another office in its department and stated, “[t]his was emailed to you, the City Manager; and the Superintendent Hudon on 6/20. I’m sure your offices have already provided a response. In a message to the Department on August 7, 2023, Mr. Montalvo stated, “[t]his request has never been completed. I have yet to receive any notice or email about my request.” Current appeal In his appeal, Mr. Montalvo states, “[the Department has] refused to send any type of response.” Based on the Department’s response and Mr. Montalvo’s appeal, it is unclear if the Department possesses any records responsive to the request. 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). 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); see also G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). The Department must clarify this matter. Conclusion Accordingly, the Department is ordered to provide Mr. Montalvo with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within 10 business days. A copy of the 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. Mr. Montalvo may appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1).

Jacqueline Cook SPR23/2056 Page 3 September 12, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Hector Montalvo