Laura H. Ortiz v. Lowell, City of - Law Department (SPR 20241023)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 18, 2024 SPR24/1023 Olivia Hart-Paulson, Esq. Assistant City Solicitor City of Lowell 375 Merrimack Street, 3rd Floor Lowell, MA 01852 Dear Attorney Hart-Paulson: 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 March 19, 2024, Ms. Ortiz requested the following: [1.] A copy of any emails to/from/cc/bcc [two specified email domains] with: Election Director... Election Clerk... Election Clerk... Timeline: 11/6/23-11/7/23 Note: including all metadata and in its original electronic format [2.] A copy of any emails to/from/cc/bcc [two specified email domains] with: @lowellma.gov Timeline: 11/6/23-11/7/23 Note: including all metadata and in its original electronic format; The City responded on April 2, 2024, denying the request, and claiming that the responsive records were withheld pursuant to Exemption (g) of the Public Records Law. See G. L. c. 4, § 7(26)(g). Unsatisfied with the City’s response, 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, 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

Olivia Hart-Paulson, Esq. SPR24/1023 Page 2 April 18, 2024 § 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 states that “the City is in possession of documents which it is withholding based on two separate but related grounds,” and cites Exemption (g) of the Public Records Law for withholding the records. See G. L. c. 4, § 7(26)(g). Exemption (g) Exemption (g) applies to: Trade secrets or commercial or financial information voluntarily provided to an agency for use in developing governmental policy and upon a promise of confidentiality; but this subparagraph shall not apply to information submitted as required by law or as a condition of receiving a governmental contract or other benefit G. L. c. 4, § 7(26)(g). For this exemption to apply in order to withhold a record, a custodian must meet all of the following six (6) criteria contained in the exemption: (1) Trade secrets or commercial or financial information, (2) Voluntarily provided to a government entity, (3) For use in developing government policy, (4) Upon an assurance of confidentiality, (5) Information not submitted as required by law, and (6) Information not submitted as a condition of receiving a governmental contract or benefit. Under Exemption (g), the City argues the following: The first reason for withholding is Public Records Exemption (g).... The

Olivia Hart-Paulson, Esq. SPR24/1023 Page 3 April 18, 2024 documents which [Ms. Ortiz] seek[s] include proprietary software and hardware information. This information is given to the City of Lowell in order to correctly and efficiently run its voting operations on the strict promise and belief of confidentiality. The second reason is based on contractual obligations the City has specifically regarding these voting machines and the software used. The disclosure of the proprietary information in documents [Ms. Ortiz] requested places the City of Lowell in breach of two separate agreements. Each agreement made regarding these voting machines has a confidentiality clause which the City would be in specific violation of if the documents you requested were disseminated. Furthermore all emails sent to the City of Lowell are copyrighted by those companies and dissemination of those emails is prohibited. Based on the City’s response, it is unclear how the records requested by Ms. Ortiz would meet all six of the criteria contained in Exemption (g). The City must clarify this. Additionally, it is unclear how the records can be withheld in their entirety. Particularly, it is uncertain how non-exempt portions cannot be segregated. See Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any nonexempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Further, it is unclear from the City’s response which specific records the City intends to withhold. The City must identify the records, categories of records, or portions of records it intends to withhold under Exemption (g). See G. L. c. 66, § 10(b)(iv) (a written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based”). 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