Laura H. Ortiz v. Lowell, City of - City Solicitor (SPR 20242033)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 30, 2024 SPR24/2033 John Pyers Executive Secretary & Records Access Officer City of Lowell – License Commission 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 December 8, 2023, Ms. Ortiz requested the following records: [1.] Copy of any Lowell Fire Department Inspections or Safety Inspections including the Requests as well as Completed Inspections and Sign Offs. Please provide, as applicable, inspection records regarding fire sprinklers, fire suppression systems, fire pumps, and fire alarm systems for these public utilized buildings, as well as flammable liquid storage permits and for 2022 and 2023, for the following property addresses of the City: [three identified locations]; [2.] Copy of any Directives, Agreements or other from City of Lowell and/or its Lowell Fire Department with National Grid, Eversource, Xfinity or any applicable electrical or cable utility that are responsive to anything requiring these utilities to come to these City of Lowell owned and operated buildings in 1, directing them to shut off utilities after Lowell Fire Department or Police or Massachusetts State Police or other Emergency Department notifies the utility company they cannot shut off their utility, and any that were in effect for 2023 (even if signed or issued or other during a prior year). Prior Appeals This request was the subject of prior appeals. See SPR24/0464 Determination of the Supervisor of Records (February 22, 2024); SPR24/0697 Determination of the Supervisor of Records (March 19, 2024); and SPR24/1016 Determination of the Supervisor of Records (April 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 SPR24/2033 Page 2 July 30, 2024 18, 2024). In my April 18th determination, I found that the City must clarify whether the records have been destroyed and, if so, whether it followed proper records retention protocol. Additionally, it was unclear whether the City knows the agency or department that may be in possession, custody, or control of the public records sought. The City responded on May 2, 2024. Unsatisfied with the response, Ms. Ortiz petitioned this office and this appeal, SPR24/2033, 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, § l0A(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 April 2nd Response In its April 2, 2024 response, the City stated, “[i]n [Ms. Ortiz’s] appeal in this matter, [she] stated, among other things, that [she was] given specific custodial knowledge that the Lowell Fire Department created inspection area records and confirmed that records existed. The City vigorously disputes this characterization that [Ms. Ortiz was] informed that inspection records were created and in the City’s possession. Because of that misrepresentation of fact, the City cannot clarify either matter listed in Determination SPR24/1016. The City incorporates its prior responses in this matter, specifically that the City has no records responsive to [the] request.” Current Appeal In her appeal, Ms. Ortiz states, “Lowell Fire Department and it’s RAO gave multiple responses that they are not the custodian… Lowell Fire Department and its RAO gave specific custodial knowledge on 4/3/24 that the Lowell Fire Department Fire Marshall(s) created some of the inspection area records (possibly inspections for: sprinklers and fire alarms, but 3rd parties the City of Lowell used from staff, or hired or contracted with created additional inspection

John Pyers SPR24/2033 Page 3 July 30, 2024 records) and he also confirmed that records existed the entire time in the City of Lowell’s possession, custody and control regardless if copies being given to the City by 3rd parties inspectors and/or agencies or other).” No Duty to Create Records Please be advised, under the Public Records Law the City is not required to create a record in response to the request. See G. L. c. 66, § 6A(d). 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 note that under the Public Records Law, a public employee is not required to answer questions, do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Atty Gen. 157, 165 (May 18, 1977). Conclusion Where the City does not possess any records responsive to the December 8th request, and has no duty to create records responsive to the request, I will now 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 jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 10(b). Sincerely, Manza Arthur Supervisor of Records cc: Laura Ortiz Garrett Beaulieu