Laura H. Ortiz v. Lowell, City of - Law Department (SPR 20242200)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 16, 2024 SPR24/2200 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 July 11, 2024, Ms. Ortiz requested the following records: [1.] Correspondence (regardless the electronic or other format) to/from/cc/bcc Lowell City Manager… and including attachments and related in any way to [a.] Senate Bill S2762 (previously noticed to the public as being filed as a “Home Rule Petition”) and the proposed legislation for filling vacancies on the City Council and School Committee [b.] Massachusetts Senate and/or their General Council [c.] Senator Edward Kennedy and/or his office [2.] Copies of any drafts of Senate Bill S2762 that include any changes made or proposed by either the City of Lowell, City Council or the City Manager regardless if sent to the Massachusetts Senate yet. The City responded on July 25, 2024. Unsatisfied with the response, Ms. Ortiz petitioned this office and this appeal, SPR24/2200, 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 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 SPR24/2200 Page 2 August 16, 2024 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 July 25th Response In its July 25, 2024 response, the City provided a record and withheld another record under Exemption (a) of the Public Records Law responsive to Part 1 of the request. Additionally, the City stated, “[t]he City has no records responsive to Part 2 of [Ms. Ortiz’s] request.” Current Appeal In her appeal, Ms. Ortiz states, “[t]he City of Lowell … misrepresented how many records were responsive there were numerous records identified at the 7/9/24 City Council Open Meeting well over 20 emails given that 11 City Councilors existed alone. The City produced one record … they blanketed Exemption A…” Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute. G. L. c. 4, § 7(26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public’s right to inspect records under the Public Records Law is restricted. See Att’y Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that

John Pyers SPR24/2200 Page 3 August 16, 2024 such a record either “shall not be a public record,” “shall be kept confidential” or “shall not be subject to the disclosure provision of the Public Records Law.” The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. Under Exemption (a), in its July 25, 2024 response, the City cites G. L. c. 66, § 18, which provides in pertinent part: This chapter [G. L. c. 66] shall not apply to the records of the general court, nor shall declarations, affidavits and other papers filed by claimants in the office of the secretary of veterans’ services or records kept by the secretary for reference by the officials of his office, be public records. G. L. c. 66, § 18. In its July 25th response, under G. L. c. 66, § 18, the City states, “[t]he record being withheld is an email from the general court to the City of Lowell; therefore, it is a record of the general court under [G. L. c. 66, § 18], and as such, it is specifically exempted from disclosure by statute.” Based on the information provided in the City’s response, it is unclear how the withheld record is the type of record contemplated under the statute cited above. The City must clarify how the above referenced statute specifically or by necessary implication permits it to withhold the email record from disclosure. Unclear if additional records exist 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.

John Pyers SPR24/2200 Page 4 August 16, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Laura Ortiz