Joyce Rowley v. New Bedford, City of - Clerk's Office (SPR 20212289)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 16, 2021 SPR21/2289 Lisa Presby, Program Director City Solicitor’s Office City of New Bedford 133 William Street, Room 203 New Bedford, MA 02740 Dear Ms. Presby: I have received the petition of Joyce Rowley appealing the response of the City of New Bedford’s (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 19, 2021, Ms. Rowley requested Asian elephant consultant reports since April 1, 2021. The City responded on August 28, 2021. Unsatisfied with the City’s response, Ms. Rowley petitioned this office and this appeal, SPR21/2289, 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 town 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

Lisa Presby SPR21/2289 Page 2 September 16, 2021 The City’s August 28th Response In its August 28, 2021 response, the City stated that, “… Consultant reports are included in the complete medical record.” On September 7th, the City explained, “I have been advised by the Zoo that they do not have the consultant’s report.” On September 13th, the City stated in an email that “…the Consultant whose draft notes were incorporated into the medical record[s of the elephants]…w[ere] retained by [a non-profit zoological society], not the City.” Public Records; Agency Relationship Public records must be maintained and kept in a manner that allows access by the general public, as they are subject to mandatory disclosure upon request. G. L. c. 66, § 10(a); see also Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979). The City is advised that where a public entity contracts with a third party to fulfill its public duties, and the public entity exercises control over that third party, an agency relationship is created. See Fifty-one Hispanic Residents of Chelsea v. School Committee of Chelsea, 421 Mass. 598, 607 (1996) (while subject to control of a public entity as a principal for purposes of performing public duties, private university is a public agent). Wherever a record custodian keeps original public records in a location other than the government building, the custodian has a duty to make the public records available in a location convenient to the general public for inspection and copying. It is unclear whether there is an agency relationship between the City and the Consultant. As such, I find the City must provide additional information regarding the relationship between it and the Consultant and the scope of any such relationship in order to determine whether the City has met its burden under G. L. c. 66, § 10(a)(ii) to provide records that are in the possession, custody or control of the custodian of records at the time of the request. Conclusion Accordingly, the City is ordered to provide Ms. Rowley 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 this response to this office at pre@sec.state.ma.us.

Lisa Presby SPR21/2289 Page 3 September 16, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: Joyce Rowley