Joyce Rowley v. New Bedford, City of - Clerk's Office (SPR 20212527)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 12, 2021 SPR21/2527 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 (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Previous Appeal On August 19, 2021, Ms. Rowley requested records from a Consultant retained by the Buttonwood Park Zoological Society (Society) since April 1, 2021 regarding certain Asian elephants at the zoo. The City responded on August 28, 2021 by giving Ms. Rowley notes from the Consultant that were given to a veterinarian employed by the Zoo. Ms. Rowley petitioned this office for the Consultant’s full report. See Determination of the Supervisor of Records, SPR21/2289 (September 16, 2021). The City was ordered to describe the agency relationship, if any, between the City and the Consultant retained by the Society. The City responded on September 23, 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. 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 SPR21/2527 Page 2 October 12, 2021 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. The City’s September 23rd Response In its September 23rd response, the City stated that, “…the City did not have any right to direct or control the Consultant retained by the non-profit organization Buttonwood Park Zoological Society…the City was not a party to any agreement the Consultant had with the Buttonwood Park Zoological Society…the City did not enter into a written agreement with the Consultant or give any public money to the Consultant. Therefore, because no agency relationship exists between the City and the Consultant, and the City was not in possession of a report by the Consultant, the City met its burden [under the law].” Current Appeal On September 30, 2021, Ms. Rowley stated that, “The Cosultant was hired to examine the Asian elephants by an agent of the City of New Bedford, the Buttonwood Park Zoological Society…the work performed…was at [a] City veterinarian[‘s]…request and direction…the benefit of the Consultant’s work is the City, and his actions…were at the request and direct control of the City. Therefore, the City must provide a copy of the report wherever it is kept. Since the [Society’s] offices are at the City Zoo, that should not be difficult… [Furthermore, m]y original appeal was for all consultant reports, in whatever form the may take. According to the clinical notes that were [already] provided, consulting occurred on multiple occasions with multiple experts [on April 25, May 5, May 9, May 23, June 19, and August 3]. Any and all consultant documents, in whatever form[,] should be provided. 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.

Lisa Presby SPR21/2527 Page 3 October 12, 2021 Where work was done on behalf of the City by the Society and the fact that the Society’s function is to perform work on behalf of the City, it remains unclear why the City cannot provide the full report. As such, I find that the City did not meet 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Joyce Rowley