Joyce Rowley v. New Bedford, City of - Clerk's Office (SPR 20212842)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 9, 2021 SPR21/2842 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 by 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 Appeals Ms. Rowley’s request has been the subject of numerous appeals. On August 19, 2021, Ms. Rowley requested, in pertinent part, Asian elephant Consultant reports since April 1, 2021 to the time of fulfillment. The City responded on August 28, 2021. See SPR21/2289 Supervisor of Records Determination (September 16, 2021). There, I asked the City to describe its relationship to the Buttonwood Park Zoological Society (Society) that hired the consultant to examine the elephants in question in order to determine whether an agency relationship between the City and Society exists. The City responded to that order on September 23, 2021. Ms. Rowley appealed the City’s response on September 30, 2021. See SPR21/2527 Supervisor of Records Determination (October 12, 2021). There, I ruled that the Society is an agent of the City and ordered the City to provide the consultant report to Ms. Rowley. On October 26, 2021, the City provided a response. On October 27, 2021, unsatisfied with the City’s response, Ms. Rowley petitioned this office and this appeal, SPR21/2842, 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). 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 SPR21/2842 Page 2 November 9, 2021 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. The City’s October 26th Response In its October 26, 2021 response, the City stated that “…the City zoo staff requested a copy of the Zoo society’s consultant report which is the subject of your recent public records appeals (SPR21/2527 and SPR21/2289). The Zoo Society has obliged with a copy of its consultant report. Attached please find a copy of the report…” Current Appeal In her appeal, Ms. Rowley stated: I am appealing the City of New Bedford's response to the October 12, 2021 determination letter as it is incomplete. I have been a professional planning consultant, and was a sole proprietor of a planning consulting business. I can attest to the fact that the consultant's report is incomplete as it does not contain the consultant's name, address, phone number, or credentials (ie: DVM, DACVR, PhD, or otherwise). Nor is it signed. It is apparent that such identification was likely found on a report cover and/or signature page, which was removed. On November 4, 2021, a representative of the City emailed the Public Records Division and Ms. Rowley stating, “I have confirmed with the Zoo's Records Access Officer Shara Rapoza and she confirmed with a representative of the Zoo Society that the entire consultant's report provided by the Zoo Society consisted of 5 pages and no pages were missing from the copy that was provided to Ms. Rowley via email on October 26, 2021.” In a separate email to the Public Records Division, the City stated, “I had a phone conversation with our Zoo Records Access Officer last week. (Thursday or Friday of last week). I also reviewed the email and verified the attachment was the same when the zoo staff received the report. A copy of the email chain is also attached here.” Conclusion Where the City does not possesses any additional records responsive to Ms. Rowley’s request, and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. If Ms. Rowley is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 10(b)

Lisa Presby SPR21/2842 Page 3 November 9, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: Joyce Rowley