Laura H. Ortiz v. Lowell, City of - City Solicitor (SPR 20241571)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 6, 2024 SPR24/1571 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 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 May 13, 2024, Ms. Ortiz requested: A copy of any… accident/crash scene data statistics or other data or reports related only to four way stop signs or traffic light involved motor vehicle accidents (regardless the electronic format), or the statistical data that can be printed out from your servers. Please exclude all individual motor vehicle accident/crash reports…. Please provide records related to the following …only: [1] Acre; [2] Pawtucket[; and] [3] Highlands. Timeline: 4/29/24 - 5/6/24 and 5/6/24 - 5/13/24…. The City responded on May 13, 2024, and stated that it does not possess or maintain records responsive to the request. Unsatisfied with the City’s response, Ms. Ortiz petitioned this office and this appeal, SPR24/1571, 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, § 7(26). 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 SPR24/1571 Page 2 June 6, 2024 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 May 13th response In its May 13, 2024 response, the City asserted, “[t]he Department of Planning and Development and the Transportation Engineer does not possess or maintain records responsive to your request. Crash data is maintained by the Lowell Police Department and the Massachusetts Department of Transportation at MassDOT: Crash Data Portal (state.ma.us).” Current Appeal In her appeal, Ms. Ortiz stated, “I am appealing … [the] failure to produce records that exist and are in [the City’s] custody, possession or control or to provide any adequate custodial index or privilege log to their portions of [the request]…. [The City] [f]ailed to state any applicable exemptions… [and] refuses to state how many responsive records it is withholding.” 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, please be advised that under the Public Records Law, an agency or municipality not in possession of the requested records shall “identify 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); see also 950 C.M.R. 32.06 (3)(c)(3) (“written notice of denial shall include ... identification of the agency or municipality that may be in possession, custody or control of the public record sought, if known to the records access officer”). In this case, the City has indicated that it does not possess responsive records, and has identified the agency or municipality that may possess the records Ms. Oritz seeks. Consequently, I find that the City has met its burden in responding to this request. Conclusion Accordingly, I will consider this administrative appeal closed. If Ms. Ortiz is not satisfied with the resolution of this administrative appeal, please be advised that this office shares

John Pyers SPR24/1571 Page 3 June 6, 2024 jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, §§ 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Laura Ortiz