Laura H. Ortiz v. Lowell, City of - Law Department (SPR 20251552)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 17, 2025 SPR25/1552 John Pyers Records Access Officer City of Lowell Law Department 375 Merrimack Street 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 April 29, 2025, Ms. Ortiz requested approximately nineteen categories and subcategories of records relating to American Rescue Plan Act (ARPA) payments, including multiple lists of specific expenditures. On May 5, 2025, Ms. Ortiz requested an additional thirteen categories of records including numerous types of expenditure reports. The City responded multiple times, including on May 8, May 12, and May 13, 2025. Unsatisfied with the City’s responses, Ms. Ortiz petitioned this office, and this appeal, SPR25/1552, 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

John Pyers SPR25/1552 Page 2 June 17, 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. Fee Estimates - Municipalities A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.05) per page may be assessed for a black and white single or double-sided photocopy of a public record. G. L. c. 66, § 10(d)(i). Municipalities may not assess a fee for the first 2 (two) hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested unless the municipality has 20,000 people or less. G. L. c. 66, § 10(d)(iii). Where appropriate, municipalities may include as part of the fee an hourly rate equal to or less than the hourly rate attributed to the lowest paid employee who has the necessary skill required to search for, compile, segregate, redact or reproduce a record requested, but the fee shall not be more than $25 per hour. Id. However, municipalities may charge more than $25 per hour if such rate is approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv). A fee shall not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv). See G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4). Current Appeal In her appeal petition, Ms. Ortiz contends that the City has demonstrated a “failure to produce records that exist, failure to state any applicable exemptions and failure to state amount of withheld responsive records of the records existing and inadequate custodial index.” In emails to this office subsequent to the opening of this appeal, Ms. Ortiz also contends that other municipalities were able to provide similar records at no cost. The City’s Responses In its April 30, 2025 response, the City provides a fee estimate totaling $375, and provides the following explanation: Based on the City’s initial diligent work on this request, it anticipates that it has certain records responsive to your request, including checks for 15 different categories of ARPA payments between 2021and 2025. Given the volume of the request, as permitted by law, you will be charged for employee search charged at the hourly rate of the lowest paid person capable of compiling, segregating, redacting, and reproducing responsive records, in accordance with 950 CMR 32.07(2)(i ). The employee time shall not exceed $25.00 per hour, unless

John Pyers SPR25/1552 Page 3 June 17, 2025 otherwise authorized by the Supervisor of Records. Moreover, because the City has more than 20,000 residents, pursuant to the last decennial U.S. Census, you will not be charged for the first two hours of work associated with this request. Estimate The good faith estimate to search for, locate, compile, and make redactions required by law for the remaining materials in response to this request is estimated to be between 17 and 20 hours, which will be conducted by the City’s ARPA Finance Manager. As the City may not charge for the first two hours of work you will be charged for 15 hours. The total estimate to search for and locate the voluminous records as detailed above is $ 375 ($25/hour x 15 hours). To receive the records, please submit payment to this office made out to the City of Lowell, and the necessary work will be conducted, subject to any withholding or redactions under the Public Records Law. Please note that the actual cost of producing the records may vary once the City begins preparing the records for response. At this time, it is anticipated that the City will be able to produce nonexempt records electronically. Please be advised, however, that if there are any responsive records that do not exist in electronic format, and if there are any documents that may only be redacted manually and not electronically (and thus must be printed prior to redaction), copying charges will apply at the rate of $.05 per page. Insofar as there are any records that need to be transferred to a USB drive, you will also be charged for the cost of the drive as permitted by law. In its May 8, 2025 response, following receipt of Ms. Ortiz’s second request, the City further explains the following: The City is in receipt of your Public Records Request of May 5, 2025. Given this request was made 6 days after your request of April 29, 2025 and is requesting ARPA Financial information in a different form the City will be treating both your most recent request and your request of April 29, 2025 as one request. What you are asking for is mostly possible. Unfortunately we are unable to run a closed PO report and, as mentioned before, there are two or three ARPA grant categories you mention which have not come due yet so we have not paid the vendor and therefore have no payment information. I further want to reiterate that in our system we have to go and find the POs you are looking for. This is not always simple as some have multiple POs. The Munis reports are simpler to search for and are relatively easy to run but it will still take time. It will also show the exact same information that was on the website. As these two latest requests are being treated as one, any time the City estimates will be taken on your May 6, 2025 request will be added to the current unresolved fee estimate of $375. The City has already expended an hour and a half on this

John Pyers SPR25/1552 Page 4 June 17, 2025 request finding out what reports had to be run, what reports could be run, and which reports cannot be run. At this point the City estimates that to get the information you requested would take another hour and half as it is based on running account reports not based on vendors. Therefore an additional 3 hours will be added to your fee estimate bringing the total time to 18 hours. Therefore the current fee estimate is $450.00. As mentioned before there are multiple ways which you may narrow the scope of your request. One is to limit the amount of information you would like to categories of ARPA payments to preclude those 5 vendors with 20-25 vendors which would have to be searched. The second way would be to only request those categories which you are most interested in receiving the information from. I would like to reiterate that this information is on the ARPA website as you have been told by the City before. The PO information and checks are on the website as well as a breakdown of the spending. Any work the City does on your request is only going to give you information you already know. It is why the City has consistently answered your 3 previous ARPA requests by referencing the specific website information. However, if you are truly unsatisfied with the website the City is willing to give you the information requested[.] Appropriate Definitions, Parameters, and Time Frames In Friedman v. Division of Administrative Law Appeal and Bureau of Special Education Appeals, the Suffolk Superior Court, in its Memorandum of Decision and Order on Defendants’ Motion to Dismiss, stated: [The requester] has a right to seek public records from his government, provided he does so in a reasonable manner. [The agencies], in turn, have a right not to be inundated with drain-the-ocean records requests, provided they fulfill the basic expectations of the [Public Records Law] in a fair and transparent manner. See Friedman v. Division of Administrative Law Appeal and Bureau of Special Education Appeals, Suffolk Sup. No. 2284CV02061-C, at 3 (February 14, 2023). The Court in Friedman noted, “the extraordinary volume of records called for in this case has compelled the Defendants to produce responsive materials in a ‘rolling’ fashion, rather than in accordance with deadlines contemplated by the [Public Records Law].” Id. at 1. The Court stated that: [T]he parties shall be expected to agree upon, to the greatest extent possible, the following: (a) appropriate definitions, time frames, and parameters regarding substance and scope for the identification of requested documents;

John Pyers SPR25/1552 Page 5 June 17, 2025 (b) appropriate search terms to be used for the retrieval of responsive documents; (c) a reasonable time frame for the production of requested documents, if the statute’s presumptive deadlines are not realistic; (d) appropriate rules to govern the withholding of documents falling within the scope of a statutory privilege or privacy doctrine; and (e) an appropriate methodology for computing the reasonable fees that may be charged for responsive document production. Id. at 2. This office encourages Ms. Ortiz and the City to communicate directly in order to facilitate providing records more efficiently and affordably. Ms. Ortiz may consider narrowing the scope of her request to enable the City to provide the records more efficiently and affordably. The City must use its superior knowledge of the records to suggest any potential reasonable modifications to the request. See G. L. c. 66, § 10(b)(vii) (a municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the municipality to produce the records sought more efficiently and affordably). Conclusion If outstanding issues remain after Ms. Ortiz and the City communicate further as described above, Ms. Ortiz may file an appeal within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Laura H. Ortiz