Laura H. Ortiz v. Lowell, City of - Law Department (SPR 20241584)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 7, 2024 SPR24/1584 John Pyers Executive Secretary & Records Access Officer City of Lowell – Law Department 375 Merrimack Street City Hall, Third 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 April 29, 2024, Ms. Ortiz requested the following records during the timeline, 2022, 2023 and 2024: [1] All public body members signed and dated or electronically completed state ethics commission conflict of interest law education training certificates under G.L. c. 268A, § 28 for the following Lowell School Committee public body members…[;] [2] All proof of delivery/receipt to the municipal clerk, appointing authority, executive director or other appropriate administrator, or their designees, of all of the public body member signed and dated or electronically completed state ethics commission conflict of interest law education training certificates under G.L. c. 268A, § 28 for the following Lowell School Committee public body members …[;] [3] All public body members signed and dated or electronically completed municipal employee or elected or appointed officials conflict of interest law disclosure form filed under G.L. c. 268A, § 28 for the following Lowell School Committee public body members…[;] [4] All proof of delivery/receipt to the municipal clerk, appointing authority, executive director or other appropriate administrator, or their designees, of all of the public body member signed and dated or electronically completed conflict of 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 SPR24/1584 Page 2 June 7, 2024 interest law disclosure form under G.L. c. 268A, § 28 for the following Lowell School Committee public body members…[.] Prior Appeal This request was the subject of a prior appeal. See SPR24/1519 Determination of the Supervisor of Records (May 24, 2024). In my May 24th determination, I learned that the City provided a response to Ms. Ortiz on May 23, 2024. Unsatisfied with the response, Ms. Ortiz petitioned this office and this appeal, SPR24/1584, 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). 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 23rd Response In its May 23, 2023 response, the City provided Ms. Ortiz with a response, which included responsive records. Current Appeal In her current appeal, Ms. Ortiz claims that the City did not provide her with all the responsive records and states, “[the City] failed to produce responsive records to [1] & [2] (2022- 2023) and [3] & [4] (2022-2024)… [the City] produced no ‘Training Certificates and COI Disclosure Statement Records’ at all to [1] & [2] (2022-2023) and [3] & [4] (2022-2024)… [the City] failed to address the actual records I requested at all and failed to produce their portions of custodial records for [1] & [2] (2022-2023) and [3] & [4] (2022- 2024)…”

John Pyers SPR24/1584 Page 3 June 7, 2024 Based on the City’s response, in conjunction with Ms. Ortiz’s appeal, it is unclear if the City possesses any additional records responsive to the request. 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). 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). Consequently, the City must clarify whether any additional responsive records exist. 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 Olivia C. Hart-Paulson, Esq.