Laura H. Ortiz v. Lowell, City of - Law Department (SPR 20250848)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 10, 2025 SPR25/0848 John Pyers Records Access Officer City of Lowell 375 Merrimack Street 3rd Floor, Room 64 Lowell, MA 01852 Dear Mr. Pyers: I have received the petition of Laura H. 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 March 10, 2025, Ms. Ortiz requested numerous records relating to the Lowell Fire Department, and on March 26, 2025, Ms. Ortiz modified her request as follows: 1. We would like a copy of the entire Lowell Fire Department Manual and Standard Operating Guides (SOG) or Revisions and/or Orders including for: Hydrant Water Supply Operations, Guides or Revisions; Assignment of Medic Units at Fires; High Rise and Mid Rise Operations; Fire Dispatch Procedures; Firefighter Accountability System; Revised and Renumbered SOG; New and Revised SOG; Assignment of Medic Unit at Fire Incidents; Standby Ambulance; Incident Safety Officer; Emergency Escape Rope; Emergency Evacuation; Emergency Alert Tone; Incident Command System; Firefighter in Distress; Minimum Staffing Levels; Post Incident Analysis; Incident Management; Emergency Response; Fire Investigations; Fire Service Authority; Hydrant Sub Districts Map 2. We would like a copy of all any LFD guidance or policies or directives or orders or other by LFD/City of Lowell to Lowell Fire Department Units/Fire Houses regarding fighting fires and the following areas a) Fire Mitigation b) Fire Suppression c) Water Access or Water Diversion (including diverting water based off race/ethnicity) d) Dams (including opening them, closing them or level of water) 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 SPR25/0848 Page 2 April 10, 2025 d) Hydrants (including placements in high populations or rural streets or hydrant water failures) e) Setting Up Exposure Protection (including brush fires) Timeline 2023, 2024, 2025 (we can modify the timeline if necessary) . . . Note: including all data/management additional details metadata like author, publication, invoice or other extracted directly from the document’s contents and created/stored as metadata alongside the documents itself when originating, scanning or during storage) The City responded on March 24, 25, and 26, 2025. Unsatisfied with the City’s response, Ms. Ortiz petitioned this office, and this appeal, SPR25/0848, 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. 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 Responses In its March 24 and 25, 2025 responses, the City provides numerous responsive records, and cites Exemption (n) of the Public Records Law for withholding others. See G. L. c. 4, § 7(26)(n). In its March 26, 2025 response, the City reiterates its claims under Exemption (n) for withholding responsive records.

John Pyers SPR25/0848 Page 3 April 10, 2025 Exemption (n) Exemption (n) applies to: records, including, but not limited to, blueprints, plans, policies, procedures and schematic drawings, which relate to internal layout and structural elements, security measures, emergency preparedness, threat or vulnerability assessments, or any other records relating to the security or safety of persons or buildings, structures, facilities, utilities, transportation, cyber security or other infrastructure located within the commonwealth, the disclosure of which, in the reasonable judgment of the record custodian, subject to review by the supervisor of public records under subsection (c) of section 10 of chapter 66, is likely to jeopardize public safety or cyber security. G. L. c. 4, § 7(26)(n). Exemption (n) allows for the withholding of certain records which if released would jeopardize public safety. The first prong of Exemption (n) examines “whether, and to what degree, the record sought resembles the records listed as examples in the statute;” specifically, the “inquiry is whether, and to what degree, the record is one a terrorist ‘would find useful to maximize damage.’” People for the Ethical Treatment of Animals (PETA) v. Dep’t of Agric. Res., 477 Mass. 280, 289-90 (2017). The second prong of Exemption (n) examines “the factual and contextual support for the proposition that disclosure of the record is ‘likely to jeopardize public safety.’” Id. at 289-90. The PETA decision further provides that “[b]ecause the records custodian must exercise ‘reasonable judgment’ in making that determination, the primary focus on review is whether the custodian has provided sufficient factual heft for the supervisor of public records or the reviewing court to conclude that a reasonable person would agree with the custodian’s determination given the context of the particular case.” Id. PETA also provides that “[t]hese two prongs of exemption (n) must be analyzed together, because there is an inverse correlation between them. That is, the more the record sought resembles the records enumerated in exemption (n), the lower the custodian’s burden in demonstrating ‘reasonable judgment’ and vice versa.” PETA, at 290. In its March 25th response, under Exemption (n), the City argues the following: Please note that while documents are being produced, one document has been withheld in its entirety. This is the Standard Operating Procedures of the Fire Department and are being withheld under section N of the public records law. Section (n) applies to records including, but not limited to, procedures which relate to emergency preparedness the disclosure of which, in the reasonable judgement of the records custodian is likely to jeopardize public safety of cyber security. M G.L c. 4, §7 (26)(n). When reviewing a document for this exemption

John Pyers SPR25/0848 Page 4 April 10, 2025 there is a two-pronged test. The first prong “inquiry is whether, and to what degree, the record is one a terrorist ‘would find useful to maximize damage.’” People for the Ethical Treatment of Animals (PETA) v. Dep’t of Agric. Res., 477 Mass. 280, 292 (2017). The second prong states that the records officer must provide “the factual and contextual support for the proposition that disclosure of this record is ‘likely to jeopardize public safety.’” Id. Here, the Standard Operating Procedure provides information which would jeopardize the public safety and the safety of the fire fighters themselves. It contains information such as radio designations, how command is established, transfer of command, when and how progress reports must be given, and how staging is to be determined (including strategic plans on where each firefighter should be). The broad dissemination of this information would allow any person to know exactly what the Fire Fighters are supposed to do during a fire. It would allow any person who is interested to start fires knowing information such as how many escape routes there will be and what kind of response a fire would gamer. It would also be incredibly useful to a terrorist for those exact reasons. He or she would know the entire response playbook. For that reason it would also jeopardize the safety of both the public and the first responders. Someone who can set off bombs or fires knowing the standard operating procedure of the fire department is a dangerous proposition. Based on the City’s response, it is uncertain how the withheld record, in its entirety, is the type that “a terrorist would find useful to maximize damage” as required under Exemption (n). Further, the City did not provide the factual heft to support the withholding of the requested record, in its entirety, pursuant to Exemption (n). In particular, although portions of the record may fall under Exemption (n), it is unclear how the record can be withheld in its entirety. The City must explain whether the record can be redacted so that segregable portions can be provided. See Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 290 n.18 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any nonexempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Records in Existence; Possession, Custody, or Control Please be advised that 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). 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). 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 her appeal petition, Ms. Ortiz provides a “list of missing records for modified scope,” including a list of approximately 28 items which she believes may be missing from among the

John Pyers SPR25/0848 Page 5 April 10, 2025 records identified by the City. Additionally, she provides samples of the records she seeks, obtained from other cities and towns. Based on the City’s responses, and the information included in Ms. Ortiz’s appeal petition, it is unclear whether the City may possesses additional records responsive to Ms. Ortiz’s request. If the City does possess additional responsive records, it must either provide the records, or cite an exemption to the Public Records Law, and explain with specificity how such an exemption applies to withhold or redact the records. See G. L. c. 66, § 10(b)(iv) (a written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based”). 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. Sincerely, Manza Arthur Supervisor of Records cc: Laura H. Ortiz