Joyce Rowley v. New Bedford, City of - Office of The City Solicitor (SPR 20232919)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 18, 2023 SPR23/2919 Nicholas DeMarco, Esq. City of New Bedford Office of the City Solicitor 133 William Street New Bedford, MA 02740-6163 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. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 10, 2023, Ms. Rowley requested: [1] Clinical records for Asian elephants Ruth & Emily, for the period September 28, 2023 to the time of fulfillment; [2] Records of injury and/or incidents to the Asian elephants or keepers for the period July 1, 2022 to the time of fulfillment; [3] Records of either Asian elephant “going down,” falling, or otherwise being unable to rise for the period January 1, 2022 to the time of fulfilment; [4] Laboratory results and/or reports for bloodwork, cultures, or other tests performed on Asian elephants, for the period September 28, 2023 to the time of fulfillment; [5] Keeper/Daily logs for the period September 28, 2023 to the time of fulfillment; [6] The current Asian elephants’ weights for the period September 28, 2023 to the time of fulfillment; [7] Radiographs, if any, for Ruth and Emily performed and any reports or readings by a DACVR of same, for the period July 1, 2023 to the time of fulfillment; 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. SPR23/2919 Page 2 December 18, 2023 [8] Asian elephant consultant reports, assessments from September 1, 2022 to the time of fulfillment; [9] Quality of Life (QOL) Assessments and meeting minutes of QOL meetings for Asian elephant Ruth and Emily for the period January 1, 2022 to the time of fulfillment. Please provide meeting minutes for the QOLAs as well. Please include documents relating to necropsy preparations and all disposition documents for the remains should either elephant perish. The general protocol documents I received previously may be excluded from this request; [10] Zoo transactions including births, deaths, transfers, and information on the age, sex, and ID number of the specimens, as well as the name of the receiving/donating facility for the period September 1, 2023 to the time of fulfillment; and, [11] Elephant Management Committee meeting minutes as referred to on page 2 of the Buttonwood Park Zoo Elephant Management Policy dated April 2023 for the period February 1, 2019 to the time of fulfillment. On October 11, 2023, the City provided Ms. Rowley with an initial response stating, “[t]he Department will produce documents requested no later than twenty-five business days after the date of receipt of your initial request. Please clarify what you mean by injury and/or incidents to the Asian elephants or keepers.” On October 16, 2023, Ms. Rowley clarified her request, stating, “[b]y injury I mean the hurt, damage, or loss sustained by either or both elephants. By incident, I mean the acts that cause injury to elephants or keepers, or both. These may or may not be limited to clinical incidents. The records’ search may include but not limited to clinical records.” On November 14, 2023, the City provided a response that included responsive records. In its November 14th response, the City’s states, “[o]n October 24, 2023, the Zoo and City wrote to inform you that they would be providing you with a formal response within twenty-five business days from receipt of your request. As a preliminary matter, neither the Zoo nor any department of the City are in possession of records matching the specifications give in sections 3, [8], 7 and 9 of your request. In answer to the remaining sections listed in your October 10th public records request, responsive records matching your given specifications have been provided in conjunction with this formal response.” As a result of the City’s November 14th response, Ms. Rowley petitioned the Supervisor of Records, and this appeal was opened. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all

Nicholas DeMarco, Esq. SPR23/2919 Page 3 December 18, 2023 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) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based…”); 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). 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 custodian must provide the responsive records. Current Appeal The City’s October 11, 2023 response informed Ms. Rowley, “[t]he [City] will produce documents requested no later than twenty-five business days after the date of receipt of your initial request.” At the same time, the City asked for clarification on her term, injury and/or incidents to the Asian elephants or keepers. Ms. Rowley provided clarification of her terms in her request on October 16, 2023. In her appeal, Ms. Rowley objects to the November 14, 2023 response and asserts: [p]ursuant to [G. L.] 66, § 6A, responses must be timely and thorough. Under [G. L. § 10], there should be no undue delay and under [G. L. c. 66, § 10(b)], records must be received within 25 [business] days of the request. On October 25, 2023, Ms. Shara Rapoza, keeper of the Buttonwood Park Zoo’s animal records, shared files with [Attorney DeMarco] that fulfilled my request. See Screenshot of One Drive files. For no reason, [Attorney DeMarco] delayed providing the said records for two weeks. A further request that the records were incomplete was ignored. See my email of November 14, 2023.” In addition, Ms. Rowley asserts, “I would like the [Supervisor of Records] opinion on [Attorney DeMarco’s] failure to provide the zoo’s records delayed by two weeks, failure to supply a thorough response, and failure to do so timely. Further, in a November 14th email to the City, Ms. Rowley states, “…[t]he documents provided are incomplete. My request for documents clearly stated, to the time of fulfillment. However, the most recent date on the documents is October 24, 2023-three weeks ago.” In addition, Ms. Rowley’s email to Attorney DeMarco asserts, “… [a]s three weeks have passed,

Nicholas DeMarco, Esq. SPR23/2919 Page 4 December 18, 2023 please provide the documents for all items for the period October 24, 2023 to November 14, 2023.” Timeliness of Production of Records Where the City indicated that they intend to provide a response and production of records within the allowed statutory timeframe, it is unclear the basis of Ms. Rowley’s appeal. See G. L. c. 66, § 10(b)(vi) (records access officer may identify a reasonable timeframe in which the agency or municipality shall produce the public records sought; provided, that for an agency, the timeframe shall not exceed 15 business days following the initial receipt of the request for public records and for a municipality the timeframe shall not exceed 25 business days following the initial receipt of the request for public records; and provided further, that the requestor may voluntarily agree to a response date beyond the timeframes set forth herein). Ms. Rowley is advised, 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). Where, the City has properly complied with providing the records in their possession at the time of Ms. Rowley’s October 10th request, I find that the City has met its burden in responding to the October 10th request. If Ms. Rowley seeks additional records between October 10th and November 14th, she is advised to make a new request for those records. Conclusion 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). Sincerely, Manza Arthur Supervisor of Records cc: Joyce Rowley