Laura H. Ortiz v. Lynn, City of - Law Department (SPR 20232133)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 21, 2023 SPR23/2133 James Lamanna, Esq. City Solicitor City of Lynn, Law Department 3 City Hall Square, Room 406 Lynn, MA 01901 Dear Attorney Lamanna: I have received the petition of Laura Ortiz appealing the response of the City of Lynn (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 21, 2023, Ms. Ortiz requested the following: 1. Correspondence TO/FROM City of Lynn and/or its Lynn Police Department regarding discussions related in any way to the Essex District Attorney Offices (EDAO) or any of the other 11 Massachusetts District Attorneys and their offices, to grant or having granted Lynn Police Departments [list of named officers] IMMUNITY via Waivers issued as “letters” under Carney v. City of Springfield, 403 Mass 604, 609 (1988) and Baglioni v. Chief of Police of Salem, 421 Mass 229 (1993)** Timeline: March 15 2021-May 15 2021 ... We note that we do not seek a copy of the Immunity Waiver letters themselves for those officers that all 12 District Attorneys issued or their notices, we strictly seek the correspondences scope above and regardless if intra City or other 2. Cover letter sent FROM/TO the Essex District Attorney Office (EDAO) asking the City of Lynn and its Lynn Police Department to take over from the EDAO the investigation, or the City of Lynn/Lynn Police Department asking for it to take over from the EDAO the investigation, for any investigation during 2020-2021 for any of the following Lynn Police Department persons . . . and including any file sheets that stated what evidence was collected and identifies what was given to the City of Lynn and its Lynn Police Department by the EDAO/Salem PD 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

James Lamanna, Esq. SPR23/2133 Page 2 September 21, 2023 The City responded on September 7, 2023, indicating it does not possess records in addition to those already provided to Ms. Ortiz by the Lynn Police Department. Unsatisfied with the City’s response, and claiming the City possesses additional records, 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. Current Appeal In her appeal petition, Ms. Ortiz argues the following: City of Lynn spoke internally about these Lynn PD officers incidents and with the Lynn PD, so emails and texts and other communication formats exists, they spoke to the Essex DAO who confirmed this as well as records produced prior show that communication occurred. The City’s September 7th and September 12th Responses In its September 7, 2023 response, the City states that “the City of Lynn possesses no other documents that are responsive to Ms. Ortiz’s request other than those provided” by the Lynn Police Department. In an email to this office and Ms. Ortiz on September 12, 2023, a representative for the City reiterates that “the City is not withholding any documents as no documents exist in its possession, custody and/or control responsive to the subject request.” 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).

James Lamanna, Esq. SPR23/2133 Page 3 September 21, 2023 Although the City’s September 7th response refers to numerous letters already provided to Ms. Ortiz, it remains uncertain how the City would not have any additional records responsive to this request. Specifically, it is unclear whether the City possesses other types of correspondence such as emails and texts relating to the letters granting immunity which have already been provided to Ms. Ortiz. The City must clarify this. 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 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