Laura H. Ortiz v. Lynn, City of - Office of the City Solicitor (SPR 20242041)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 30, 2024 SPR24/2041 James Lamanna, Esq. City Solicitor City of Lynn, Law Department 3 City Hall Square, Room 406 Lynn, MA 01901 Dear Attorney Lamanna: I have received the petition of Laura Ortiz appealing the response of the City of Lynn (City) 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: Correspondence City of Lynn and/or its Lynn Police Department to/from/cc/bcc with Essex District Attorney Office’s District Attorney [named individual] regarding discussions related in any way to the following Lynn Police Departments officers (whom were given immunity via Waivers issued as “letters” under Carney v. City of Springfield, 403 Mass 604, 609 (1988) and Baglioni v. Chief of Police of Salem, 421 Mass 229 (1993)[.] On May 8, 2024, the City provided a response. Unsatisfied with the City’s response, Ms. Ortiz petitioned this office and this appeal, SPR24/2041, 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. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden 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

James Lamanna, Esq. SPR24/2041 Page 2 July 30, 2024 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. The City’s May 8th Response In its May 8, 2024 response, the City states, “[t]he City of Lynn does not possess any documents that you have requested. The Lynn Police Department has its own Public Records Access Officer and may possess documents responsive to your request.” No Duty to Create Records 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, under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). Further, in accordance with the Public Records Law, 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). In an email to this office on July 18, 2024, the City confirmed it does not possess any records responsive to the request. Conclusion Where the City confirmed that it does not possess records responsive to Ms. Ortiz’s 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)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Laura Ortiz