Rowley, Joyce v. New Bedford, City of - Buttonwood Park Zoo (SPR 20150095)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords April 15,2015 SPRlS/095 Ms. Mikaela A. McDermott, Esq. Office of the City Solicitor 133 William Street, Room 203 New Bedford, MA 02740-6163 Dear Attorney McDermott: I have received the petition of Joyce Rowley appealing the response of the City ofNew Bedford (City) - Buttonwood Park Zoo (Zoo) to her request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Ms. Rowley requested: 1. A copy of the Zoo master plan mentioned in a city council finance committee email 2. Copies of complete medical records for Ruth the Asian Elephant 3. In addition to her request for records Ms. Rowley also questioned the reasonableness of fees charged for the provision of records and inquired as to the status of a refund concerning prior records determination made by this office The basis of Ms. Rowley's appeal is that the Zoo has not provided all the responsive records it maintains responsive to her requests. Ms. Rowley also contends the Zoo charges for the provision of the responsive records are unreasonable. On March 3, 2015 an attorney on my staff provided you with the file pertaining to Ms. Rowley's petition. On March 4 Ms. Shara Crook-Martin informed my office that she was forwarding the file on to the City Solicitor's Office for review. On March 31, 2015 a member of your staff contacted my office with an update, stating a response would be complete and provided by the end of the week. On April 9, 2015 the Zoo provided a detailed response. Under the Public Records Law and the Access Regulations (Regulations) all requests for public records must be met with a response within ten (10) days of the request. G. L. c. 66, § 10(b); 950 C.M.R. 32.05. The response may be an offer to provide records, a fee estimate for provision of the records, or a denial. The Zoo is advised that all records custodians must comply with both the Public Records Law and the Regulations with respect to the timeliness of response. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Ms. Mikaela A. McDermott, Esq. SPR15/095 Page Two April 15, 2015 The Public Records Law states that "the burden shall be upon the custodian to prove with specificity the exemption which applies." G. L. c. 66, § 10(c) (emphasis added). See also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852,857 (1995); see also District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995). Accordingly, the Zoo is advised that to comply with the Public Records Law and Regulations it must provide specificity with respect to any denial of access to public records. This requires a records custodian to not only cite an exemption, but to specifically explain the applicability of the exemption to the requested records. With regards to request number 1, in the April 9 letter, Ms. Crook-Martin explains that the draft zoo master plan is being withheld from disclosure pursuant to Exemption (d) of the Public Records Law. Exemption (d) applies to: inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this subclause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based G. L. c. 4, §7 (26)(d) Exemption (d) is intended to avoid premature release of materials that could taint the deliberative process if disclosed. Its application is limited to recommendations on legal and policy matters found within an ongoing deliberative process. Babets v. Secretary of the Executive Office of Human Services, 403 Mass. 230, 237 n.8 (1988). Factual reports which are reasonably complete and inferences which can be drawn from factual investigations, even if labeled as opinions or conclusions, are not exempt as deliberative or policy making materials. G. L. c. 4, § 7(26)(d); see also Environmental Protection Agency v. Mink, 410 U.S. 73, 89 (1973) (Purely factual matters used in the development of government policy are always subject to disclosure.). The April 9 letter states that "the draft zoo master plan has not been finalized and is still being deliberated upon by the zoo and other city agencies. In fact, to date, not all City Councilors have reviewed it, and the mayor has not approved it. To release the draft master plan now, would be premature and would interfere with the deliberative process." I find this response contains the specificity mandated under the Public Records Law. It is, therefore, the finding ofthis office that the City may withhold the requested records from disclosure pursuant to Exemption (d) until such deliberations have concluded. This portion of the appeal is now closed. With respect to request number 2, you explained that the Zoo provided all the responsive records it was in possession of at the time it fulfilled the request. The duty to comply with requests for information extends only to those records that exist and are in the custody of the custodian of records at the time of the request. See G. L. c. 4, § 7(26) (defining "custodian" as

Ms. Mikaela A. McDermott, Esq. SPR15/095 Page Three April 15, 2015 the public employee with routine access to or control of public records). There is no obligation to create a record in response to a request for public records. See G. L. c. 66, § 1O (a); 32 Op. A tty Gen. 157, 165 (May 18, 1977) (custodian is not obliged to create a record in response to a request for information). · Given that the Zoo had provided all the records it possessed at the time it fulfilled the request for Ruth the Asian Elephant's medical records, this portion of the appeal is now closed. Ms. Rowley may make new a request for records the City or the Zoo may have created or has received since of responding to original request for the elephant's medical records. Refund In the April 9th letter you addressed Ms. Rowley's concerns regarding the Supervisor of Records (Supervisor) ordering of a refund. See SPR 11/096 Determination of the Supervisor of Records, dated (August 24, 2011 ). In that Determination this office ordered the City to provide a refund of $26.68 for necropsy reports unless the City provided a written assurance that the City Solicitor reviewed the reports for exempt material. On September 27, 2011 the City provided this office with a written assurance that it did review the reports for exempt material. I find this response complies with my August 2011 order. Accordingly this portion of the appeal is now closed. Fees A custodian of records may assess a reasonable fee for complying with a request for public records. G. L. c. 66, § 10(a); see also 950 C.M.R. 32.06(2) (where cost of complying with a request for public records is expected to exceed ten dollars ($10.00), custodian of records shall provide written good faith estimate). Absent specific statutory authority to the contrary, the fees to be charged for complying with requests for public records are established by the Public Records Access Regulations (Regulations). See 950 C.M.R. 32.06 (fees for public records). Under the Regulations, a custodian of records may assess a maximum fee of twenty cents ($.20) per page for a photocopy of a public record and fifty cents ($.50) per page for a computer print out of a public record. See 950 C.M.R. 32.06(1)(a). In addition to the copying fee, the Regulations provide that in cases where search or segregation time is necessary a custodian of records may charge a pro-rated fee based on the hourly rate of the lowest paid employee who is capable of performing the task. 950 C.M.R. 32.06(1)(c). The Regulations define "search time" as the time needed to locate, pull from the file, copy and refile public records, and "segregation time" as the time used to redact data that is exempt from non-exempt material. 950 C.M.R. 32.03. The search and segregation fees must reflect the actual cost of complying with a particular request. G. L. c. 66, § 10(a). In the April 9 letter Ms. Crook explained in detail why the Zoo charged $4.50 for search and segregation time involved in responding to a November 19 and December 1, 2014 records

Ms. Mikaela A. McDermott, Esq. SPR15/095 Page Four April15, 2015 requests. Unfortunately the letter does not contain the specificity required by the Regulations for a good faith fee estimate for the provision of records. Accordingly, the City or the Zoo is hereby ordered, within ten (1 0) day of this order, to provide Ms. Rowley with a revised fee estimate drafted in accordance with the Public Records Law and its Regulations. This administrative appeal is now closed. a Supervisor of Records cc: Ms. Joyce Rowley Ms. Shara Crook-Martin