Laura H. Ortiz v. Lowell, City of - City Solicitor (SPR 20241016)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 18, 2024 SPR24/1016 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 Appeals This request was the subject of prior appeals. See SPR24/0464 Determination of the Supervisor of Records (February 22, 2024) and SPR24/0697 Determination of the Supervisor of Records (March 19, 2024). In my March 19th determination, I found that it was unclear whether 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 SPR24/1016 Page 2 April 18, 2024 the City possessed records responsive to Ms. Ortiz’s request. The City responded on April 2, 2024. Unsatisfied with the response, Ms. Ortiz petitioned this office and this appeal, SPR24/1016, 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 City’s April 2nd Response In its April 2, 2024 response, the City stated, “[t]he City has no responsive records to Part 1 or Part 2 of your request.” Current Appeal In her appeal, Ms. Ortiz states: Lowell Fire Department and its RAO gave specific custodial knowledge on 4/3/24 that the Lowell Fire Department Fire Marshall(s) created some of the inspection area records (possibly inspections for: sprinklers and fire alarms, but 3rd parties the City of Lowell used from staff, or hired or contracted with created additional inspection records) and he also confirmed that records existed the entire time in the City of Lowell’s possession, custody and control regardless if copies being given to the City by 3rd parties inspectors and/or agencies or other… Lowell [Fire Department] says they don’t have them, but the Lowell [Fire Department] admitted that it did do some of the “inspections” and created records as well as “staff or 3rd parties inspectors or agencies” created the rest of the inspectional records. Regardless the City of Lowell retains copies and the public records laws require that the City retention [sic] these existing public records and no

John Pyers SPR24/1016 Page 3 April 18, 2024 destruction notice was given to me and the City has the Duty to retrieve all existing records even if it asked 3rd parties to “Custodian” it wherever they may be… The public records I seek are or were in the City of Lowell (and its Lowell Fire Departments) custody, possession and control at the time I made my request and thereafter. Neither did any RAO give me any destruction of public records notices with the date these existing records were destroyed. Records in Existence; Records Management 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(b)(ii). Where Ms. Ortiz claims that she was informed that such inspection records were created, and in the City’s possession, I find that the City must clarify whether the records have been destroyed and, if so, whether it followed proper records retention protocol. Also, the duty to comply with requests for records extends to identifying the agency or municipality that may be in possession, custody, or control of the public record sought, if known. See G. L. c. 66, § 10(b)(iii). It is unclear whether the City knows the agency or department that may be in possession, custody, or control of the public records sought. The City must clarify these matters. 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