Laura H. Ortiz v. Lynn, City of - Office of the City Solicitor (SPR 20240876)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 4, 2024 SPR24/0876 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 January 30, 2024, Ms. Ortiz requested: [1.] Copy of any Lynn 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, 2023/2024, for the following property addresses of the City: [three identified locations] . . .; [2.] Copy of any Directives, Agreements or other from City of Lynn and/or its Lynn Fire Department with National Grid, Eversource, Peabody Municipal, Xfinity or any applicable electrical or cable utility that are responsive to anything requiring these utilities to come to these City of Lynn owned and operated buildings in 1, directing them to shut off utilities after Lynn 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 or 2024 (even if signed or issued or other during a prior year). . . . Previous Appeal This request was the subject of a previous appeal. See SPR24/0694 Determination of the Supervisor of Records (March 18, 2024). In my March 18th determination, I closed SPR24/0694 in light of the City providing a written response to Ms. Ortiz on March 11, 2024. 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

James Lamanna, Esq. SPR24/0876 Page 2 April 4, 2024 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. 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 City’s March 11th Response In its March 11, 2024 response, the City provides numerous responsive records. Current Appeal In her appeal petition, Ms. Ortiz contends that “the records the RAO’s produced are majority non responsive to the scope, parameter and timelines we requested records for unfortunately. In addition given the age and method of copying, many records were illegible and unreadable.” Additionally, with her appeal petition, Ms. Ortiz provides a list of at least 30 examples of records produced by the City which she contends are “outdated” or “illegible.” Records in Existence; Possession, Custody, or Control 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, under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). However, 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 City’s March 11th response, and the information provided in Ms. Ortiz’s appeal petition, it is unclear whether the City possesses additional records responsive to Ms.

James Lamanna, Esq. SPR24/0876 Page 3 April 4, 2024 Ortiz’s request. Specifically, it is unclear whether the City possesses more recent records or more legible copies of the records Ms. Ortiz has requested. 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 ten (10) 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