Laura H. Ortiz v. Lowell, City of - Law Department (SPR 20241400)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 22, 2024 SPR24/1400 John Pyers Executive Secretary & Records Access Officer City of Lowell – Law Department City Hall 375 Merrimack Street, 3rd Floor Lowell, MA 01852 Dear Mr. Pyers: I have received the petition of Laura H. 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 February 22, 2024, Ms. Ortiz requested: [1] All public body members signed and dated Certificate of Receipt of Open Meeting Law Materials for the following Lowell City Council public body members: [list of identified individuals; … and] [2] All proof of delivery/receipt to the municipal clerk, appointing authority, executive director or other appropriate administrator, or their designees, of all the public body member signed and dated Certificate of Receipt of Open Meeting Law Materials for the following Lowell City Council public body members: [list of identified individuals]. [For both items,] Timeline: 2022, 2023, 2024. Note: including all data/ management additional details metadata like author, publication, invoice or other extracted directly from the document’s contents and created/stored as metadata alongside the documents itself when originating, scanning or during storage. The City responded on March 8, 2024, indicating it does not possess responsive records. Unsatisfied with the City’s response, Ms. Ortiz petitioned this office and this appeal, SPR24/1400, 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 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 SPR24/1400 Page 2 May 22, 2024 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. 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 8th response In its March 8, 2024 response, the City asserted, “[a]fter a diligent search, the City is not in possession of any documents which are responsive to your request.” Current Appeal In her appeal petition, Ms. Ortiz contends that the City “gave specific information to the Attorney General Open Meeting Law section multiple times (4/22/24 and 5/1/24) that these [records] were anticipated to be retrieved, yet failed to produce any copy of them.” She further contends that “[t]he public records I seek are or were in the [City’s] custody, possession and control at the time I made my request and thereafter. Neither did any [records access officer] give me any destruction of public records notices with the date these existing records were destroyed.” Possession, Custody or Control; Records in Existence 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). However, 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 information provided in Ms. Ortiz’s appeal petition, in conjunction with the City’s response, it is unclear if the City possesses any records responsive to her request. If the City does possess responsive records, it must either provide the records, or cite an exemption to the Public Records Law, and explain with specificity how such an exemption applies to withhold or redact the records. 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,

John Pyers SPR24/1400 Page 3 May 22, 2024 and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based”). Conclusion Accordingly, 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. Ms. Ortiz may appeal the City’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Laura Ortiz