Laura H. Ortiz v. Lowell, City of - City Solicitor (SPR 20251862)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 10, 2025 SPR25/1862 John Pyers Records Access Officer City of Lowell, Law Department 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 June 19, 2025, Ms. Ortiz requested approximately twelve categories of records, including multiple subcategories, concerning funding from the American Rescue Plan Act (ARPA), including reports on revenue, spending, purchase orders, paid invoices, and memoranda. Her request includes numerous links to descriptions of the subject matters she seeks records for, along with numerous lists of specific topics. She also clarified that the “timeline for records [is] 2021-2025.” The City responded on June 25, 2025, providing a fee estimate. Unsatisfied with the City’s response, and objecting to the fees, Ms. Ortiz petitioned this office, and this appeal, SPR25/1862, 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 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 SPR25/1862 Page 2 July 10, 2025 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. 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 argues the following We appeal of their substantive responses to our 6/19/25 modified prr and failure to revise a fee estimate and produce records that exist, failure to state any applicable exemptions, failure to state amount of withheld responsive records of the records existing and inadequate custodial index or privilege log and failure to custodian records in a organized or retrievable manner and excessive fees regarding my public records requests is against custodial entities[.] The City’s June 25th Fee Estimate In its June 25, 2025 response, the City gives a total fee estimate of $75, and provides the following explanation in support of its fee estimate:

John Pyers SPR25/1862 Page 3 July 10, 2025 Based on the City’s initial diligent work on this request, it anticipates that it has certain records responsive to your request, including MUNIS reports and other payment or account balance information. 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 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 3 hours, which will be conducted by the ARPA funds staff. The total estimate to search for and locate the voluminous records as detailed above is $75 ($25/hour x 3 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 non-exempt 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. . . . If you wish to narrow this request, either in time frame or scope, the City may be able to more efficiently respond. Based on the information provided in the City’s June 25th fee estimate, although the City has stated that it will charge an hourly rate less than that of the lowest paid employee with the necessary skills, it is unclear why the City requires the amount of time indicated in order to search for and locate the records. The City must provide further details regarding the tasks involved and what each task entails. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). Further, although the City has stated that it will not charge for the first two hours of work associated with the request, it is unclear how the City has accounted for the first two hours of work in the fee estimate provided to Ms. Ortiz. The City must clarify these matters.

John Pyers SPR25/1862 Page 4 July 10, 2025 For the reasons discussed above, I find the City must revise its fee estimate or provide further explanation of how the fees assessed are consistent with G. L. c. 66, § 10(d). 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 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 Ortiz