Laura H. Ortiz v. Lowell, City of - Law Department (SPR 20251028)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 25, 2025 SPR25/1028 John Pyers Records Access Officer City of Lowell 375 Merrimack Street Lowell, MA 01852 Dear Mr. Pyers: I have received the petition of Laura Ortiz appealing the nonresponse 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 January 30, 2025, Ms. Ortiz requested records of American Rescue Plan Act (ARPA) funding for the following programs, for the years 2021 – 2025: [a] Fire Department Apparatus Replacement Plan[;] [b] Lowell Community Health Center Family Medicine Residency Program and Health Justice Learning Institute[;] [c] LPD Equipment Upgrades discussed including Service Vehicle project details … Radio System upgrades … and Mobile Surveillance Camera Systems[;] [d] Summer St. Supportive Housing Community Teamwork Inc.[;] [e] Lotus House Supportive Housing Program for Women Community Teamwork Inc.[;] [f] The Lowell Co-Op Opioid Outreach Programs[;] [g] Affordable Housing and Redevelopment[;] [h] Lowell Housing Authority Building Portfolio Update & Improvements[;] [i] Project Learn Local Youth Career Exploration and Mentoring Program[;] [j] Ad-Hoc Grant Award[;] [k] Cultural Affairs & Special Events Grant Award[;] [l] Community Teamwork Inc. Residential Energy Efficiency Programming[;] [m] Non – Profit Festival Grants Lowell Hispanic & Latinx Festival[;] [n] ARPA Program Management and Federal Compliance[;] [o] Revenue Replacement[.] The City provided responses on February 10, February 27, and March 19, 2025. On March 19, 2025, Ms. Ortiz amended her request to seek ARPA grant applications related to the 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 SPR25/1028 Page 2 April 25, 2025 same list of programs. Claiming to have received no further response from the City, Ms. Ortiz petitioned this office and this appeal, SPR25/1028, was opened as a result. Subsequent to the opening of this appeal, the City provided a response on April 24, 2025. 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 February 10, 2025 response, the City informed Ms. Ortiz that it required additional time to respond to her request, and estimated that it would produce responsive records no later than February 28, 2025. In its February 27, 2025 response, the City provided Ms. Ortiz with a number of responsive records and links to certain publicly available information. In its March 19, 2025 response, in response to an inquiry from Ms. Ortiz, the City stated that it possessed no additional documents responsive to her request. Subsequently on March 19, 2025, Ms. Ortiz modified her request to seek related ARPA grant applications. Current Appeal In her April 14, 2025 petition to this office, Ms. Ortiz alleged that the City had failed to respond to her March 19th request. In its April 24, 2025 response, the City informed Ms. Ortiz that she had been provided with all information responsive to her request, and that “[t]he City has no further documents regarding ARPA which are responsive to your request of March 19, 2025[.]”

John Pyers SPR25/1028 Page 3 April 25, 2025 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 only 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 additional 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 Ortiz Olivia Hart-Paulson, Esq.