Laura H. Ortiz v. Worcester, City of - Law Department (SPR 20250519)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 26, 2025 SPR25/0519 Michael Vigneux Records Access Officer City of Worcester 455 Main Street Worcester, MA 01609 Dear Mr. Vigneux: I have received the petition of Laura H. Ortiz appealing the response of the City of Worcester (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 6, 2025, Ms. Ortiz requested “… public records related to the ‘Shelter Advocacy Letter’ … specifically … any emails to/from/cc/bcc [thirteen identified individuals]” for the dates August 8, 2024, and December 12-14, 2024. The City provided a response on February 21, 2025. Unsatisfied with the response, Ms. Ortiz petitioned this office and this appeal, SPR25/0519, 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 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

Michael Vigneux SPR25/0519 Page 2 February 26, 2025 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 February 21st Response In its February 21, 2025 response, the City informed Ms. Ortiz that it possessed no records responsive to her request. Current Appeal In her February 21, 2025 petition to this office, Ms. Ortiz expressed her belief that the City possessed records responsive to her request. In an email communication to this office on February 25, 2025, the City confirmed that it possessed no records responsive to the request. No Duty to Create Records Please be advised, under the Public Records Law a custodian is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d). In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See 32 Op. Att’y Gen. 157, 165 (May 18, 1977). 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). Conclusion Given that the City possesses no records responsive to Ms. Ortiz’s request and this office has no authority to compel the City to create records, 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 H. Ortiz Janice Thompson, Esq.