Joyce Rowley v. New Bedford, City of - Clerk's Office (SPR 20230373)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 9, 2023 SPR23/0373 Nicholas DeMarco, Esq. Associate City Solicitor City of New Bedford 133 William Street, Room 118 New Bedford, MA 02740 Dear Attorney DeMarco: 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). On February 6, 2023, Ms. Rowley requested eight categories of records concerning the Buttonwood Park Zoo, including seven categories of records relating to “Asian elephants Ruth & Emily” and one category of records concerning “Zoo transactions including births, deaths, [and] transfers.” The City responded on February 21, 2023, providing responsive records. Unsatisfied with the City’s response, Ms. Rowley appealed, and this case 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. Att’y 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. 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 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

Nicholas DeMarco, Esq. SPR23/0373 Page 2 March 9, 2023 custodian must provide the responsive records. The City’s February 21st Response In its February 21, 2023 response, the City provides numerous records, without redaction, responsive to Ms. Rowley’s request, and indicates that the City does not possess any additional responsive records. Current Appeal In her request, Ms. Rowley specifies that she seeks records “for the period January 13, 2023 to the time of fulfilment.” In her appeal petition, Ms. Rowley notes that she is “a frequent filer for the City of New Bedford’s public records on the animals at Buttonwood Park Zoo. As such, the City claims a 25 day response time.” She goes on to state that “the responses are delayed by two weeks or more as the City Solicitor’s Office delays transmitting them to [Ms. Rowley] for up to two weeks.” She further contends that “this is a violation of the Public Records Access Act as the records are not provided to the ‘time of fulfillment’ as per the request, nor is an exception cited for withholding the documents. Animal records are not exempted under the Act nor are redactions made warranting the delay.” Possession, Custody, or Control at the Time of the Request Ms. Rowley is advised that this office has previously found that the duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). Further, with respect to the timeframe to produce responsive records, the written response shall “identify a reasonable timeframe in which the agency or municipality shall produce the public records sought; provided, that . . . for a municipality the timeframe shall not exceed 25 business days following the initial receipt of the request for public records.” G. L. c. 66, § 10(b)(vi). Conclusion Please note that, in compliance with the Public Records Law, the Supervisor of Records may only issue determinations where a violation of G. L. c. 66, § 10 has occurred. See G. L. c. 66, § 10A(a). Given that no violation of G. L. c. 66, § 10 has been asserted by Ms. Rowley in her appeal petition, I am unable to issue a determination on these matters. Accordingly, I will 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)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies).

Nicholas DeMarco, Esq. SPR23/0373 Page 3 March 9, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Joyce Rowley