Laura H. Ortiz v. Lowell, City of - Law Department (SPR 20232315)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 12, 2023 SPR23/2315 John Pyers Executive Secretary & Records Access Officer City of Lowell License Commission 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 the following: 1. [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 the following MDL lawsuits against pharmaceutical companies named [in a list of approximately six companies]. . . . 2. [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 the following MDL lawsuits against pharmaceutical companies named [in a list of two companies], if these are not considered settlements yet then [Ms. Ortiz] ask[s] when these are expected to be settled and request that the Waivers be produced to us upon completion of those settlements... Previous Appeal This request was the subject of a previous appeal. See SPR23/1286 Determination of the Supervisor of Records (June 27, 2023). In my June 27th determination, I ordered the City to provide a response to Ms. Ortiz. Subsequently, the City responded on June 27, 2023, indicating that it does not possess documents responsive to the request. Unsatisfied with the City’s response, Ms. Ortiz further appealed, and this case was opened as a result. 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 SPR23/2315 Page 2 October 12, 2023 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 June 27th and June 29th Responses In its June 27, 2023 response, the City refers back to a previous response and states that it “sent a reply to Ms. Ortiz on May 23, 2023 informing her that [the City] did not have any documents responsive to her request.” The City reiterates this in a June 29, 2023 response, again stating that “the City has no documents responsive to [Ms. Ortiz’s] request.” Agency Relationship 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). Additionally, public records must be maintained and kept in a manner that allows access by the general public, as they are subject to mandatory disclosure upon request. G. L. c. 66, § 10(a); see also Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979). The City is advised that where a public entity contracts with a third party to fulfill its public duties, and the public entity exercises control over that third party, an agency relationship is created. See Fifty-one Hispanic Residents of Chelsea v. School Committee of Chelsea, 421 Mass. 598, 607 (1996) (while subject to control of a public entity as a principal for purposes of performing public duties, private university is a public agent). Wherever a record custodian keeps original public records in a location other than the government building, the custodian has a duty to make the public records available in a location convenient to the general public for inspection and copying. In her appeal petition, Ms. Ortiz contends that the City hired an outside law firm in the course of multi district lawsuits against the companies listed in her request.

John Pyers SPR23/2315 Page 3 October 12, 2023 In this case, where it appears that an outside law firm may have acted as an agent on behalf of the City, it is unclear whether the records for the City’s agents were searched. As such, I find that the City must provide additional information detailing its search in order to determine if the City has met its burden under G. L. c. 66, § 10(a)(ii) to provide records that are in the possession, custody, or control of the custodian of records at the time of the request. 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