Laura H. Ortiz v. Lynn, City of - Police Department (SPR 20242037)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 30, 2024 SPR24/2037 Lieutenant Robert Avery Records Access Officer Lynn Police Department 300 Washington Street Lynn, MA 01902 Dear Lieutenant Avery: I have received the petition of Laura Ortiz appealing the response of the Lynn 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 April 22, 2024, Ms. Ortiz requested, for the time period of December 3, 2020 – May 15, 2021, “[c]orrespondence… to/from/cc/bcc with Essex District Attorneys’ Office . . . regarding discussions related in any way to the following [Department] officers (whom were given immunity via waivers issued as ‘letters’…: [list of 8 identified individuals].” The Department responded on April 22, 2024. Unsatisfied with the Department’s response, Ms. Ortiz petitioned this office and this appeal, SPR24/2037, 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. 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

Lieutenant Robert Avery SPR24/2037 Page 2 July 30, 2024 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 April 22nd response In its April 22, 2024 response, the Department asserted, “[a]ll requests for information and police reports should be sent to us through our records portal system….” Current Appeal In her appeal, Ms. Ortiz stated, “[t]he [Department] … failed to produce [records] and never sent anything to me in writing… nor did [the Department] provide any additional information regarding how the records are exempt from disclosure….” Pursuant to 950 C.M.R. 32.06, “requests for public records may be made orally in person to a records access officer or custodian or may be written…. [W]ritten requests may be delivered by a requester to the business address or designated website or email address of a records access officer or custodian: 1. by hand; 2. by mail; 3. by electronic mail; or 4. by facsimile, if custodian has facsimile access.” See 950 C.M.R. 32.06(a), (c). Consequently, where Ms. Ortiz submitted her request via electronic mail, it is unclear why the Department requires that requests be submitted through the portal before producing responsive records. Based on the foregoing, I find that the Department has not met its burden in responding to this request under the Public Records law. 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