Laura H. Ortiz v. Lowell, City of - Police Department (SPR 20241572)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 6, 2024 SPR24/1572 Jacqueline Cook Keeper of Records City of Lowell – Police Department 50 Arcand Drive Lowell, MA 01852 Dear Ms. Cook: I have received the petition of Laura Ortiz appealing the response of the Lowell Police Department (Department) 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 Department responded on May 23, 2024, stating there are no responsive records. Unsatisfied with the Department’s response, Ms. Ortiz petitioned this office and this appeal, SPR24/1572, 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

Jacqueline Cook SPR24/1572 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 Department’s May 23rd response In its May 23, 2024 response, the Department asserted, “[w]e have no responsive records. However, if there is a specific intersection in the city you are inquiring about, we can provide information for the time frame listed.” Current Appeal In her appeal, Ms. Ortiz stated, “I am appealing … [the] failure to produce records that exist and are in [the Department’s] custody, possession or control or to provide any adequate custodial index or privilege log to their portions of [the request]…. [The Department] [f]ailed to state any applicable exemptions… [and] refuses to state how many responsive records it is withholding.” Further Ms. Ortiz states that the Department’s suggestion of identifying a specific intersection, “… admit[s] that records existed in the possession custody and control of the [Department].” 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 Department’s response, it is unclear if the Department possesses records responsive to her request. If the Department 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, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based”).

Jacqueline Cook SPR24/1572 Page 3 June 6, 2024 Conclusion Accordingly, the Department 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 Department’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Laura Ortiz