Laura H. Ortiz v. Lowell, City of - Law Department (SPR 20242032)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 30, 2024 SPR24/2032 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; Previous Appeal This request was the subject of a previous appeal. See SPR24/1023 Determination of the Supervisor of Records (April 18, 2024). In my April 18th determination, I ordered the City to clarify its claims under Exemption (g) for withholding responsive records. Subsequently, the City responded on May 2, 2024. Unsatisfied with the City’s response, Ms. Ortiz petitioned this office, and this appeal, SPR24/2032, was opened as a result. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all 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. SPR24/2032 Page 2 July 30, 2024 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. 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 May 2nd Response In its May 2, 2024 response, the City states that it is withholding “three emails and their attachments which have information specifically made for pollsters and other qualified individuals” pursuant to Exemption (g) of the Public Records Law. 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.

Olivia Hart-Paulson, Esq. SPR24/2032 Page 3 July 30, 2024 In its May 2nd response, under Exemption (g), the City argues the following: The documents include proprietary software and hardware information which is considered a trade secret and voluntarily given to the City of Lowell for use in developing the government policy of efficient and accurate elections. This information is further given on the strict requirement and agreement of the City’s confidentiality. The information given is helpful but not required to be given by contract or as part of winning the City of Lowell’s contract. The nature of the documents themselves allows no redacted copy to be given. The information itself, which takes up the substantive majority of those documents, is considered proprietary trade secret. The information is also considered confidential by contract and the emails have a notice which purports them to be protected by copyright law. If dissemination were to occur the City would be in violation of contracts and potential copyright law. In conclusion, the three emails and their attachments have been withheld as redacted versions are not possible, the City cannot produce the documents without being in violation of confidentiality clauses and potentially copyright law, and the documents are exempt from disclosure based on exemption (g) for the following reasons: 1. The emails and their attachments contain trade secrets regarding the machines 2. These trade secrets were shared with the City of Lowell voluntarily 3. The trade secrets were given in order to ensure the policy of efficient and accurate election 4. The trade secrets were given to the City of Lowell under the strictest promise of confidentiality 5. The trade secrets were not given based on a contractual obligation for LHS to do so 6. The City of Lowell did not condition their accepting LHS’ bid for the government contract on receiving the information. In Camera Inspection In order to facilitate a determination as to the applicability of the Exemption (g) claims made by the City to withhold the responsive records, the City must provide this office with un- redacted copies of the responsive records for in camera inspection. See 950 C.M.R. 32.08(4). After I complete my review of the records, I will return the records to the City’s custody and issue an opinion on the public or exempt nature of the records. The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Mass. Comm’n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an

Olivia Hart-Paulson, Esq. SPR24/2032 Page 4 July 30, 2024 in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. Please be aware, any cover letter submitted to accompany the relevant records may be subject to disclosure. Order Accordingly, the City is ordered to provide this office with un-redacted copies of the responsive records for in camera inspection without delay. Sincerely, Manza Arthur Supervisor of Records cc: Laura Ortiz