Laura H. Ortiz v. Lowell, City of - City Solicitor (SPR 20232293)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 10, 2023 SPR23/2293 John Pyers Executive Secretary & Records Access Officer City of Lowell License Commission City Hall 375 Merrimack Street, 3rd Floor Lowell, MA 01852 Dear Ms. 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 September 4, 2023, Ms. Ortiz requested the following: 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 ... and the City of Lowell conducting “sweep-type actions” to clear encampments or other approaches[.] Timeline: July 15, 2023-Sept 4, 2023 2. 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” or other approaches ... Timeline: July 15, 2023-Sept 4, 2023 3. 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[.] Timeline: July 15, 2023-Sept 4, 2023 4. Any records related to Lowell Transitional Living Center (LTLC) and: “Requirements” or “Qualifications” for any “Placements” of ... displaced homeless residents there ... Timeline: July 15, 2023-Sept 4, 2023 5. City of Lowell and/or its Board of Health and/or its Fire Department or other and any Inspection Records and/or Permits regarding the Lowell Transitional 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 SPR23/2293 Page 2 October 10, 2023 Living Center (LTLC) ... Timeline: Sept 4, 2023-Sept 4, 2022 (or any that were in effect within this timeline if inspected prior) 6. Any records related to City of Lowell and it’s “Co-Op Team” and all Services that are offered or available during the homelessness clearing sweeps ... Timeline: July 15, 2023-Sept 4, 2023[.] The City responded multiple times, including on September 7, September 8, and September 18, 2023, providing numerous responsive records. Unsatisfied with the City’s responses, 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. The City’s Responses In its September 7 and September 8, 2023 responses, the City provides numerous responsive records to Ms. Ortiz. In its September 18, 2023 response, the City indicates that the request was forwarded to multiple departments. 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, 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). In her appeal petition, Ms. Ortiz contends that the City is “refusing to produce responsive records that exist, are in their custody, possession and control of the multiple separate departments.” Ms. Ortiz reiterated her concerns in a telephone conversation with this office on October 6, 2023. In an email to this office on September 26, 2023, the City states that the “appeal

John Pyers SPR23/2293 Page 3 October 10, 2023 acknowledgement has been forwarded to the RAO’s for each department that might have records responsive to this request - same as when the request was originally submitted. It is unlikely that any additional records will be uncovered, but if any are - they will be turned over.” Based on the City’s responses, and the September 26th email cited above, it is unclear if the City possesses additional records responsive to Ms. Ortiz’s request. 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