Laura H. Ortiz v. Lowell, City of - City Solicitor (SPR 20240697)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 19, 2024 SPR24/0697 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 December 8, 2023, Ms. Ortiz requested the following records: [1.] Copy of any Lowell Fire Department Inspections or Safety Inspections including the Requests as well as Completed Inspections and Sign Offs. Please provide, as applicable, inspection records regarding fire sprinklers, fire suppression systems, fire pumps, and fire alarm systems for these public utilized buildings, as well as flammable liquid storage permits and for 2022 and 2023, for the following property addresses of the City: [three identified locations]; [2.] Copy of any Directives, Agreements or other from City of Lowell and/or its Lowell Fire Department with National Grid, Eversource, Xfinity or any applicable electrical or cable utility that are responsive to anything requiring these utilities to come to these City of Lowell owned and operated buildings in 1, directing them to shut off utilities after Lowell Fire Department or Police or Massachusetts State Police or other Emergency Department notifies the utility company they cannot shut off their utility, and any that were in effect for 2023 (even if signed or issued or other during a prior year). Prior Appeal This request was the subject of a prior appeal. See SPR24/0464 Determination of the Supervisor of Records (February 22, 2024). In my previous determination, it was my understanding that Lowell Fire Department (Department) intended to provide a further response. 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 SPR24/0697 Page 2 March 19, 2024 The Department responded on March 4, 2024. Unsatisfied with the response, Ms. Ortiz petitioned this office and this appeal, SPR24/0697, 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 custodian must provide the responsive records. The Department’s March 4th Response In its March 4, 2024 response, the Department stated, “Lowell Fire Department has no records responsive to your request.” Current Appeal In her appeal, Ms. Ortiz states: No Responsive Records were produced at all by either City of Lowell or the Lowell Fire Department to me… The Lowell Fire Department’s RAO’s 3/4/24 substantive response was very vague… Their response did not address at all the second custodian the City of Lowell… The City of Lowell… failed to respond themselves in writing, nor clarify after “inspections” did occur where these “Fire Safety Area Inspection Records of Multiple Buildings” responsive public records are custodian and why it has failed to produce records that exist, and are in it’s custody possession and control (given the Lowell Fire Department claims it’s not the custodian or it gave the law office the records in order to be redacted for any exemption applicable)… Lowell Fire Department… stated on 1/31/24 that [it] spoke to [the City] and the Law Office and told them that it was the City of Lowell Law Offices responsibility as the RAO to release these existing records to me, not the Lowell Fire Department…

John Pyers SPR24/0697 Page 3 March 19, 2024 Possession, Custody, or Control The City is 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). Based on the Department’s March 4th response and Ms. Ortiz’s appeal, it is unclear whether the City possesses 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 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. Ms. Ortiz may appeal the substantive nature of the City’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Laura Ortiz Chief Phillip Charron